Perez v. Abbott

Before
Circuit Judge SMITH, Chief District Judge GARCIA, and
District Judge RODRIGUEZ

ORDER ON PLAN H283

XAVIER
RODRIGUEZ UNITED STATES DISTRICT JUDGE RLANDO L. GARCIA CHIEF
UNITED STATES DISTRICT JUDGE

This
Order addresses Plaintiffs' claims concerning Plan H283,
enacted by the 82nd Legislature in 2011. Plaintiffs assert
“results” claims under § 2 of the Voting
Rights Act (“VRA”), intentional vote dilution
claims under § 2 of the VRA and the Fourteenth
Amendment, and Shaw-type racial gerrymandering
claims under the Equal Protection Clause of the Fourteenth
Amendment. The Perez, LULAC, and MALC Plaintiffs also assert
one person, one vote claims under the Equal Protection Clause
of the Fourteenth Amendment based on population deviations
among the districts. This opinion is intended to be read in
conjunction with the Court's fact findings, which are
issued separately, as well as the Court's opinion on Plan
C185 (docket no. 1339).

I.
VRA § 2 results claims generally

The
Task Force, NAACP Plaintiffs, and MALC[1] assert § 2
results claims on the basis that Texas could have enacted a
plan with more minority opportunity districts (both
single-minority and coalition) than were contained in Plan
H283 and that enacting a plan with such additional districts
was required by the § 2 results test. In their Fourth
Amended Complaint, the Task Force Plaintiffs allege that
“Plan H283 fails to create at least three additional
Latino-majority House districts that afford Latinos the
opportunity to elect their preferred candidate.” Docket
no. 891 ¶ 37; see also Id. ¶ 68
(“The Latino population of Texas is sufficiently
geographically compact to comprise the majority of citizen
voting age persons in at least 33 Texas House
districts.”). They also assert so-called “nudge
factor” claims against two HCVAP-majority districts in
Plan H283, HD117 in Bexar County and HD78 in El Paso. Docket
no. 1282 at 4-5.

The
Task Force Plaintiffs contend that “Latinos are
sufficiently numerous and compact to comprise the citizen
voting age majority in more districts than contained in Plan
H283, including in Harris County, Nueces County, and the Rio
Grande Valley.” Docket no. 1282 at 4. However, somewhat
inconsistently, they offer Plan H292 as a demonstration plan,
asserting that it has 34 Latino opportunity districts,
created by restoring HD33 in Nueces County,
“balancing” the Latino population in Bexar County
to restore HD117, “balancing” the Latino
population in El Paso to add HD78, and adding a Latino
opportunity district in the Rio Grande Valley by combining
population overages from Cameron and Hidalgo Counties to
capture the “organic” district that grew in the
Valley. Docket no. 1282 at 6; docket no. 444 at
20.[2]
Defendants correctly note that “only 32 districts
exceed 50% HCVAP or SSVR” in Plan H292. Docket no. 468
at 19.

The
NAACP's Third Amended Complaint alleges that the Texas
Legislative Black Caucus introduced a plan with four
additional African-American opportunity districts (Plan
H202), and alleges a § 2 results claim. Docket no. 900
¶¶ 22, 58; see also docket no. 406 at 30
(arguing that four additional minority opportunity districts
could have been drawn compared to the enacted
plan).[3]

“When
applied to a claim that single-member districts dilute
minority votes, the first Gingles condition requires
the possibility of creating more than the existing number of
reasonably compact districts with a sufficiently large
minority population to elect candidates of its choice.”
Johnson v. De Grandy, 512 U.S. 997, 1008 (1994).
Generally, to evaluate this claim, it must be determined how
many “reasonably compact districts with a sufficiently
large minority population to elect candidates of its
choice” exist in Plan H283, and whether Plaintiffs have
demonstrated that more were required, which is usually done
through presentation of demonstration plans. LULAC v.
Perry, 548 U.S. 399, 430 (2006) (“De
Grandy requires a comparison between a challenger's
proposal and the ‘existing number of reasonably compact
districts.'”). Because Plaintiffs are alleging
§ 2 claims based on the number of opportunity districts
statewide, analysis of the claims should involve a comparison
between the number of opportunity districts in the enacted
plan (Plan H283) and a Gingles demonstration plan
proposed by Plaintiffs. While normally this would be a
straightforward task, it is not in this case.

This
task is made complicated by numerous factors, including that:
(1) it remains unclear whether the Perez Plaintiffs are
asserting § 2 results claims despite offering statewide
demonstration Plan H232 and several limited-area
demonstration plans[4]; (2) the parties (including the Plaintiffs
among themselves) disagree concerning which districts in the
enacted plan are opportunity districts; (3) even single
Plaintiffs present conflicting assertions concerning which
districts they are alleging to be additional opportunity
districts; (4) some Plaintiffs fail to clearly set out
specifically all the districts they contend are opportunity
districts either in the enacted plan or their demonstration
plan (or both), asserting only that more could have been
drawn; (5) Plaintiffs and Defendants disagree on how to
determine whether a district is a minority opportunity
district and both incorrectly assert that districts with less
than 50% minority CVAP are opportunity districts in some
instances; (6) many of Plaintiffs' experts reports and
analyses focus on VAP instead of CVAP; and (7) certain
demonstration plans contain 25 districts in Harris County,
compared to 24 in Plan H283, making comparisons outside of
drop-in counties more difficult.[5]

The
Court finds that certain of the § 2 results claims are
moot, given the Legislature's adoption of the interim
plan, with slight modifications, in 2013. Plan H309 and Plan
H358 resolved some of the § 2 results claims, and no
§ 3(c) relief would be available based on any proven
violations of the § 2 results claims. Given these facts,
as well as the complicating factors listed above, the Court
concludes that it would be a waste of the Court's
resources to delve into significant detail into all of the
§ 2 results claims with regard to Plan H283. Instead,
because the Legislature adopted a new plan in 2013, the
parties will be permitted to bring their § 2 results
claims concerning the 2013 plan based on more recent ACS
data. However, the Court will offer some analysis of the 2011
plan § 2 results claims to give preliminary guidance to
the parties for the 2013 plan trial and as necessary where
the claims relate to the Plaintiffs' intentional vote
dilution claims.

A.
How to measure opportunity districts

For
both the enacted plan and Plaintiffs' demonstration
districts, Defendants contend that opportunity districts are
measured solely on demographics. For the enacted plan,
Plaintiffs contend that they are determined by demographics
coupled with a functional analysis including election
analysis. Some Plaintiffs (such as the Task Force Plaintiffs)
also apply a functional analysis to their proposed
demonstration districts, though some Plaintiffs (MALC and the
NAACP) appear to rely more on meeting the demographic
threshold for demonstration districts.[6]

Some
Plaintiffs challenge specific majority-HCVAP districts as not
providing real electoral opportunity and not being Latino
opportunity districts—specifically, the Task Force
Plaintiffs challenge HD78 in El Paso and HD117 in Bexar
County under § 2 for both results and intent, and the
United States contends that HD35 and HD41 are not opportunity
districts as part of its intentional vote dilution
claims.[7] As this Court held in its congressional
plan opinion, Plaintiffs may bring results claims against a
particular district despite its majority-HCVAP status; the
fact that a district is majority-HCVAP does not, standing
alone, qualify it as a Latino opportunity district, and
Plaintiffs may attempt to prove that it lacks “real
electoral opportunity.” Similarly, as discussed in the
congressional plan opinion, the Court views exogenous
election indices in enacted districts as probative evidence
of whether a district is an opportunity district, but
declines to measure whether a district is an opportunity
district based solely on a 50% win standard on such indices.
Rather, the Court conducts a practical, searching inquiry
based on the totality of circumstances and the particular
facts of the case to determine whether any particular
district is an opportunity district for § 2 purposes.

In
their 2011 proposed Fact Findings and Conclusions of Law,
Defendants assert that Plan H283 contains 30 Latino
opportunity districts and 12 African-American opportunity
districts. Docket no. 413 FF93, 94. Defendants' count of
Latino opportunity districts is based solely on the number of
districts with 50% or more HCVAP from the Red-106 Report.
Docket no. 413 FF93.[8]As discussed, a 50% HCVAP district is
theoretically an opportunity district, but it may still be
challenged by Plaintiffs as not providing real electoral
opportunity.

Although
Defendants' fact findings also cite the Red-106 report
(the ACS Special Tabulation of CVAP) as support for the
number of African-American opportunity districts, the
Appendix to the post-trial brief states that Defendants'
criterion for African-American opportunity districts is 40%
BVAP. Docket no. 411 Appendix at Table 5 n.1.[9] Using the 40%
BVAP criteria, Defendants list the following as
“African-American districts”: HD22, HD27, HD95,
HD100, HD109, HD110, HD111, HD131, HD139, HD141, HD142, and
HD146.[10] Docket no. 411 Appendix. Defendants
claim that no proposed map creates more African-American
districts using the 40% BVAP criterion. Defendants' use
of 40% BVAP appears to be based on the position taken by
mapdrawers and redistricters, despite the fact that
Defendants agree that Supreme Court case law has established
a majority (over 50%) requirement for minority opportunity
districts under § 2. The Court thus finds
Defendants' reliance on a 40% BVAP threshold for
African-American opportunity districts to be
erroneous.[11] Rather, for single-minority opportunity
districts, the standard for a minority opportunity district
is majority CVAP for the particular minority group.

B.
Whether § 2 can require coalition districts

Defendants
further contend that minority coalition districts are never
required or protected by § 2, and thus they do not count
them in any of their analyses. However, Plaintiffs assert
that coalition districts can be required and propose certain
coalition districts in their Gingles demonstration
plans. The Court agrees with Plaintiffs that § 2 can
require the creation of minority coalition districts.

The
Court in Gingles “ha[d] no occasion to
consider whether § 2 permits, and if it does, what
standards should pertain to, a claim brought by a minority
group, that is not sufficiently large and compact to
constitute a majority in a single-member district.”
Thornburg v. Gingles,478 U.S. 30, 46 n.12 (1986).
Several cases presented this issue after Gingles,
but the Supreme Court declined to address the issue and
resolved the cases on other grounds.

In
Growe v. Emison, 507 U.S. 25 (1993), the district in
question was composed of minority voters from three different
minority groups, including Native Americans. The Supreme
Court noted that “Gingles expressly declined
to resolve whether, when a plaintiff alleges that a voting
practice or procedure impairs a minority's ability to
influence, rather than alter, election results, a showing of
geographical compactness of a minority group not sufficiently
large to constitute a majority will suffice. We do not reach
that question in the present case either.” Id.
at 41 n.5 (citations omittted). Again, in Johnson v. De
Grandy, 512 U.S. 997, 1009 (1994), the Supreme Court
stated, “As in the past, we will assume without
deciding that even if Hispanics are not an absolute majority
of the relevant population in the additional districts, the
first Gingles condition has been satisfied in these
cases.”

In
LULAC v. Perry, 548 U.S. 399, 443 (2006), the Court,
as it had “done several times before, ” assumed
without deciding “that it is possible to state a §
2 claim for a racial group that makes up less than 50% of the
population.” Id. at 443 (Kennedy, J., writing
for a plurality). However, Justice Souter opined that it was
time to recognize that “the integrity of the minority
voting population in a coalition district should be protected
much as a majority-minority bloc would be.”
Id. at 485 (Souter, J., concurring in part and
dissenting in part).

The
Supreme Court did address the issue of crossover districts in
Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality
opinion). In Strickland, state house district 18 had
been majority minority, but the African American voting age
population had fallen below 50%, and it was no longer
possible to draw a geographically compact majority-minority
district. Id. at 8. The North Carolina legislature
split a county in an effort to give “African-American
voters the potential to join with majority voters to elect
the minority group's candidate of choice.”
Id. Thus, the following question was posed to the
Court: “In a district that is not a majority-minority
district, if a racial minority could elect its candidate of
choice with support from crossover majority voters, can
§ 2 require the district to be drawn to accommodate this
potential?” Id. at 6. Justice Kennedy
acknowledged that it had “declined to decide the
minimum size minority group necessary to satisfy the first
[Gingles] requirement . . . [but] [w]e must consider
the minimum-size question in this case.” Id.
at 12 (Kennedy, J.). The plurality made clear at the outset
that it was only addressing the issue as it pertains to
crossover districts; it was not addressing coalition
districts. As Justice Kennedy explained:

In majority-minority districts, a minority group composes a
numerical, working majority of the voting-age population.
Under present doctrine, § 2 can require the creation of
these districts. At the other end of the spectrum are
influence districts, in which a minority group can influence
the outcome of an election even if its preferred candidate
cannot be elected. This Court has held that § 2 does not
require the creation of influence districts.

The present case involves an intermediate type of
district—a so-called crossover district. Like an
influence district, a crossover district is one in which
minority voters make up less than a majority of the
voting-age population. But in a crossover district, the
minority population, at least potentially, is large enough to
elect the candidate of its choice with help from voters who
are members of the majority and who cross over to support the
minority's preferred candidate. This Court has referred
sometimes to crossover districts as “coalitional”
districts, in recognition of the necessary coalition between
minority and crossover majority voters. But that term risks
confusion with coalition-district claims in which two
minority groups form a coalition to elect the candidate of
the coalition's choice. We do not address that type of
coalition district here.

Id. at 13-14 (citations omitted).

After
considering the parties' arguments, the Court held that
crossover districts are not protected under § 2.
Id. at 14-15. However, the scope of the ruling was
clarified in several ways. First, the ruling did not apply to
coalition districts, as the Court was not addressing that
issue. Id. at 13-14. The Court also made clear that
“[o]ur holding does not apply to cases in which there
is intentional discrimination against a racial minority,
” and “if there were a showing that a State
intentionally drew district lines in order to destroy
otherwise effective crossover districts, that would raise
serious questions under both the Fourteenth and Fifteenth
Amendments.” Id. at 20, 24. The Court stated,
“Our holding that § 2 does not require crossover
districts does not consider the permissibility of such
districts as a matter of legislative choice or
discretion.” Id. at 23. While legislatures
have a choice to draw such districts, § 2 “does
not mandate creating or preserving crossover
districts.” Id.

Although
the Strickland decision may provide some guidance on
crossover districts, the Supreme Court has not yet addressed
coalition districts—those electoral districts in which
two or more minority groups form a coalition to elect the
candidate of their choice. While each minority group
individually may not be able to meet the first
Gingles precondition, they may be able to meet the
criteria when combined as a coalition. Coalition districts
are different from crossover districts, in which minorities
require the help of white crossover voters to elect their
candidate of choice. Minority voters in coalition districts
do not rely on white crossover votes in order to elect the
minorities' candidate of choice.

Again,
the Court in Strickland clearly stated that it was
not addressing coalition districts. Id. at 13-14.
The Court very carefully distinguished crossover and
coalition districts and cautioned against confusing the two.
Id. at 13. However, the Court's later decision
in Perry v. Perez, 565 U.S. 388 (2012) (per curiam)
may have created some of the confusion that the Court
cautioned against in Strickland. In referring to a
new congressional district in this Court's interim
redistricting plan, the Court in Perez stated,
“If the District Court did set out to create a minority
coalition district, rather than drawing a district that
simply reflected population growth, it had no basis for doing
so. Cf. Bartlett v. Strickland, 556 U.S. 1, 13-15,
129 S.Ct. 1231, 173 L.Ed.2d 173 (2009)(plurality
opinion).” 565 U.S. at 399. The meaning of this
statement, the use of the “Cf.” signal,
and the reliance on Strickland is unclear, given
that Strickland did not address coalition districts.
If the Court meant that there was no factual basis for
drawing the district, there would be no need for a citation
in support. If the Court meant that there was no legal basis
for drawing the district, Strickland provides no
support because the opinion expressly states that it does not
apply to coalition districts. In any event, the Court's
statement in Perez provides no guidance on the issue
of whether the majority-minority requirement under the first
Gingles precondition mandates that a single racial
or ethnic group (e.g., Hispanic or African American,
but not a combination of both) constitute a majority of the
citizen voting age population or whether the first
Gingles precondition may be satisfied when
minorities from more than one racial or ethnic group, when
joined together, constitute a majority of the citizen voting
age population.

The
Fifth Circuit addressed this issue more than twenty-five
years ago and recognized that minority groups may be
aggregated to meet the first Gingles precondition.
In LULAC v. Midland ISD, 812 F.2d 1494, 1500 (5th
Cir.), vacated on state law grounds, 829 F.2d 546
(5th Cir. 1987), the Fifth Circuit approved of the manner in
which African Americans and Hispanics were joined together as
a compact minority group “capable of carrying a
district.” The Fifth Circuit reached the same result
one year later in Campos v. City of Baytown, 840
F.2d 1240 (5th Cir. 1988)). In Campos, the district
court found that a minority group composed of both African
Americans and Hispanics was sufficiently large and
geographically insular to form a majority in a single-member
district. The district court also found that “Blacks
were cohesive, Hispanics were cohesive, together the minority
group was cohesive, and that Anglos voted sufficiently as a
bloc to usually defeat the minority's preferred
candidate.” Id. at 1242. The district court
reviewed the totality of the circumstances, considering the
relevant factors, and concluded that vote dilution had
occurred and a violation of § 2 had been established.
Id. On appeal, the Fifth Circuit found that the
district court's finding that the first Gingles
requirement was satisfied was not clearly erroneous, and
explained:

There is nothing in the law that prevents the plaintiffs from
identifying the protected aggrieved minority to include both
Blacks and Hispanics. Section 1973(a) protects the right to
vote of both racial and language minorities. . . . If,
together, they are of such numbers residing geographically so
as to constitute a majority in a single member district, they
cross the Gingles threshold as potentially
disadvantaged voters.

Id. at 1244 (citations omitted). The Court in
Campos also explained, however, that the plaintiffs
must prove that the minorities “actually vote
together” in a cohesive manner; otherwise, their claim
will fail. “The key is the minority group as a whole. .
. . If the evidence were to show that the Blacks vote against
a Hispanic candidate, or vice versa, then the minority group
could not be said to be cohesive. But if the statistical
evidence is that Blacks and Hispanics together vote for the
Black or Hispanic candidate, then cohesion is shown.”
Id. at 1245. Because the Campos plaintiffs showed
that African Americans and Hispanics, as a minority group,
were politically cohesive, the district court's findings
on the second Gingles factor was not clearly
erroneous. Id. at 1248.

The
Eleventh Circuit agreed with the Fifth Circuit's view on
coalition districts in Concerned Citizens of Hardee
County v. Hardee County Board of Commissioners, 906 F.2d
524, 526 (11th Cir. 1990), stating that “[t]wo minority
groups (in this case blacks and hispanics) may be a single
section 2 minority if they can establish that they behave in
a politically cohesive manner.” The plaintiffs failed
to prove, however, that Black and Hispanic voters in Hardee
County were politically cohesive. Id. at 526-27.

In
Badillo v. City of Stockton, 956 F.2d 884, 886 (9th
Cir. 1992), the Ninth Circuit assumed that a combined group
of Black and Hispanic voters met the first Gingles
precondition, but held that the minority plaintiffs failed to
show political cohesion as required under the second
Gingles requirement. In Bridgeport Coalition for
Fair Representation v. City of Bridgeport, 26 F.3d 271
(2nd Cir.), vacated on other grounds, 512 U.S. 1283
(1994), the Second Circuit also assumed that coalition
districts are covered under § 2. The district court
found that “[c]ombining minority groups to form
[majority-minority] districts is a valid means of complying
with § 2 if the combination is shown to be politically
cohesive.” 26 F.3d at 275. The circuit court agreed
that the first Gingles precondition had been met,
and found “both testimonial and statistical evidence
that African Americans and Hispanics in Bridgeport [were]
politically cohesive and that voting in the City [was]
remarkably racially polarized.” Id. at 275-76.

In
Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996)
(en banc), the Sixth Circuit expressly disagreed with the
Fifth Circuit on the issue of coalition districts, thus
creating a clear split among the circuit courts. The
redistricting plan in Nixon included a district with
both African-American and Hispanic voters in order to
establish sufficient numbers and satisfactory geographical
compactness. Id. at 1384. The district court granted
the defendants' motion to certify the question of whether
two protected minority groups may aggregate to pursue a
§ 2 vote dilution cause of action. Id. at 1383.
The circuit court decided that if Congress had wanted to
protect a minority group that was composed of more than one
race or ethnicity, it would have used more words in the
plural form, such as “protected classes” rather
than “protected class.” Id. at 1386-87.
Thus, it refused to extend § 2 coverage to a minority
group that includes more than one race or ethnicity.

In
2012, the Second Circuit noted that “[t]he circuits are
split as to whether different minority groups may be
aggregated to establish a Section 2 claim.” Pope v.
Cty. of Albany, 687 F.3d 565, 572 n.5 (2d Cir. 2012).
The court ultimately resolved the case on the failure to show
racially polarized voting but discussed the first
Gingles precondition at length and noted that while
plaintiffs may choose a more expansive minority group to
satisfy the first Gingles requirement, it may also
add to their burden in demonstrating political cohesion
required for the second precondition. Id. at 574-77
& n.11.

To
summarize, the Supreme Court has not addressed coalition
districts, the Fifth Circuit has expressly permitted them,
and the Second, Ninth, and Eleventh Circuits have tacitly
recognized them. Only the Sixth Circuit has expressly denied
§ 2 protection to a combined group of minorities under
the first Gingles requirement. As the Fifth Circuit
has stated, “We are a strict stare decisis
court.” Ballew v. Continental Airlines, Inc.,
668 F.3d 777, 782 (5th Cir. 2012). Just as one panel of the
circuit court “may not overrule the decision, right or
wrong, of a prior panel in the absence of any intervening
contrary or superseding decision by the court en banc or the
Supreme Court, ” a district court is bound by a circuit
decision unless or until it is overturned by an en banc
decision of the circuit court or a decision of the Supreme
Court. See Society of Separationists, Inc. v.
Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). In the
Fifth Circuit, Campos is binding precedent, and this
Court must follow it in the absence of any authority to the
contrary. Thus, if Plaintiffs can meet their burden of proof
in all other respects, their § 2 claim will not fail
simply because the minority group in question is composed of
more than one race or ethnicity.

This is
consistent with the manner in which the Supreme Court has
dealt with earlier cases, in which it assumed (without
deciding) that it was permissible for the district court to
combine distinct ethnic and language minority groups for
purposes of assessing compliance with § 2. See,
e.g., Growe, 507 U.S. at 41 (unanimous
opinion). Rather than impose a strict prohibition, the
Supreme Court simply cautioned that “when dilution of
the power of such an agglomerated political bloc is the basis
for an alleged violation, proof of minority political
cohesion is all the more essential.” Id.
(citing Badillo v. Stockton, 956 F.2d 884, 891 (9th
Cir. 1992); Concerned Citizens of Hardee County v. Hardee
County Bd. of Comm'rs, 906 F.2d 524 (11th Cir.
1990); Campos, 840 F.2d at 1244).

This is
also consistent with the intent of Congress when it amended
the Act in 1982. In amending § 2, Congress emphasized
the need for courts to undertake a searching practical
evaluation of the “past and present reality.” S.
Rep. 97-417 at *30 (citing White v. Regester, 412
U.S. 755, 760-77 (1973)). Coalitions of minority voters are a
present reality, and affording them protection under § 2
is consistent with the Congressional goal of keeping
political processes “equally open to minority
voters.” S. Rep. 97-417 at *2. Minorities must still
“pull, haul, and trade to find common political ground,
” De Grandy, 512 U.S. at 1020, and they will
not meet the second Gingles precondition if they do
not. But once that has been achieved and the minority voters,
when combined, constitute a majority, the first
Gingles precondition is also satisfied. The bottom
line is that every case is different, and “the
Gingles factors cannot be applied mechanically and
without regard to the nature of the claim.”
Voinovich v. Quilter, 507 U.S. 156, 158 (1993).
Thus, this Court follows the Fifth Circuit and holds that
§ 2 can require the creation of coalition districts,
provided that the Gingles criteria (and totality of
the circumstances) are satisfied as to the coalition.

C.
Whether the VRA can require the State to violate the County
Line Rule[12]

It is
undisputed that mapdrawers did not create certain opportunity
districts even though the proposed districts met their
population thresholds because they felt that doing so would
have required a County Line Rule violation. In their
briefing, Defendants argue that requiring the Legislature to
violate the County Line Rule to comply with § 2 would
violate the Equal Protection Clause and the Shaw v.
Reno line of cases because they would be subordinating
traditional redistricting principles to race. Docket no. 1295
at 54-55; docket no. 996 (Motion for Summary Judgment) at
28-31. The Court disagrees.

The
Supremacy Clause generally requires that state laws that are
inconsistent with federal laws must yield to the federal law.
As a result, it is well established that state constitutional
principles such as the County Line Rule must yield to the
Equal Protection Clause's one-person, one-vote
requirement. Bartlett v. Strickland, 556 U.S. 1, 6
(2009) (“It is common ground that state election-law
requirements like the Whole County Provision may be
superseded by federal law—for instance, the one-person,
one-vote principle of the Equal Protection Clause of the
United States Constitution.”). Mapdrawers recognized
this requirement by splitting one county in the map to
maintain an overall deviation below 10%, but they asserted
that this was the only county cut permitted by law. And
although the TLC had advised that the County Line Rule would
also have to yield to the VRA and Texas had itself taken this
position in prior redistricting litigation, [13]redistricting
leadership flatly rejected that position.

In
Strickland, the Supreme Court considered the
question “whether § 2 of the Voting Rights Act
requires district lines to be drawn that otherwise would
violate the Whole County Provision” in North
Carolina's Constitution. 556 U.S. at 7. The Court then
stated, “That, in turn, depends on how the statute is
interpreted.” Id. The Court noted that §
2 “can require the creation of [majority-minority]
districts” but concluded that the VRA did not require
the particular district at issue to be drawn because the
plaintiffs had failed to establish the first Gingles
precondition under the Court's newly established majority
standard. Id. at 13-15. Thus, because the district
was not required by § 2 in that case, the Supreme Court
did not directly decide the initial issue of whether §
2, when satisfied, could have required the state to draw a
district in violation of the Whole County Provision.
Nevertheless, such a conclusion is implied, given that the
Court could simply have held that § 2 could not require
any district to be drawn in contravention of the Whole County
Provision, regardless of how the statute is interpreted and
regardless of whether § 2 requirements were satisfied,
rather than determining whether § 2 required the
district in the first instance.

Nevertheless,
Defendants argue that the “Legislature's adherence
to the Texas Constitution was not only a rational exercise of
race-neutral policy; it was essential to avoid a violation of
the Equal Protection Clause” and that Plaintiffs'
“suggesting that the [VRA] compels subordination of
traditional redistricting principles to race, would simply
redirect the strict scrutiny analysis to section 2
itself.” Docket no. 411 at 38-39. Defendants contend
that Supreme Court jurisprudence holds “beyond question
that traditional redistricting principles cannot be
subordinated to race without running afoul of the Fourteenth
Amendment.” Id. at 39-40. However, the Supreme
Court's Equal Protection cases debunk this argument.

Justice
O'Connor, writing for a plurality, held that, assuming
compliance with § 2's results test is a compelling
state interest (this Court holds that it is), the
“narrow tailoring” requirement of strict scrutiny
allows states a limited degree of leeway in furthering such
interests—“[i]f the State has a ‘strong
basis in evidence' for concluding that creation of a
majority-minority district is reasonably necessary to comply
with § 2, and the districting that is based on race
‘substantially addresses the § 2 violation, '
it satisfies strict scrutiny, ” meaning that it
operates as a defense to a charge of racial gerrymandering.
Bush v. Vera, 517 U.S. 952, 977 (1996) (plurality
opinion). Further, the plurality noted, the “district
drawn in order to satisfy § 2 must not subordinate
traditional districting principles to race substantially more
than is ‘reasonably necessary' to avoid § 2
liability.” Id. at 979. On its face, this
language makes clear that traditional districting principles
may be subordinated to race when necessary to avoid § 2
liability (but no more than necessary).

Similarly,
the Fifth Circuit has held that a majority-minority district
“is constitutional if the State has a ‘strong
basis in evidence' for concluding that the three
Gingles preconditions are present and if the
district drawn in order to satisfy § 2 does not
‘subordinate traditional districting principles to race
substantially more than is “reasonably necessary”
to avoid § 2 liability.'” Clark v. Calhoun
Cty., Miss., 88 F.3d 1393, 1407 (5th Cir. 1996); see
also Id. at 1406 (“a tailored response to a found
[§ 2] violation must use race at the expense of
traditional political concerns no more than is reasonably
necessary to remedy the wrong”). Thus, traditional
districting principles such as the County Line Rule may be
subordinated to race to remedy a § 2 violation, so long
as it is no more than reasonably necessary to comply with
§ 2.[14]Cf. Bethune-Hill v. Va. State Bd. of
Elections, 137 S.Ct. 788 (2017) (affirming district
court's finding that although race predominated in the
drawing of District 75, the district survived strict scrutiny
because the legislature's use of race was narrowly
tailored to complying with § 5 of the VRA).

Defendants'
position conflates the two steps of a Shaw-type
Equal Protection analysis. When a party asserts a claim under
Shaw that a districter has racially gerrymandered a
district, the first inquiry is whether traditional
redistricting principles are subordinated to race such that
racial criteria predominated; if so, strict scrutiny is
triggered. In Defendants' view, the first step would be
the end of the inquiry. However, as discussed above, strict
scrutiny allows the use of race when narrowly tailored to
further a compelling state interest, such as complying with
the VRA. Accordingly, strict scrutiny permits the
subordination of traditional redistricting principles to race
insofar as reasonably necessary to avoid § 2 liability
and/or remedy the wrong. While states choosing to draw
districts may avoid strict scrutiny under the Equal
Protection Clause by respecting their own traditional
districting principles and the states retain
“‘discretion to apply traditional districting
principles, ' in majority-minority, as in other,
districts, ” Bush, 517 U.S. at 978, this does
not mean that they may claim that a single traditional
districting principle such as the County Line Rule allows
them to avoid drawing districts required by § 2 under
the totality of circumstances.[15] Thus, the Court rejects
Defendants' argument that the VRA cannot require the
Legislature to violate the County Line Rule.

The
Court will thus consider Plaintiffs' § 2 results
claims and Gingles maps, including those that create
purported coalition districts and that violate the County
Line Rule. However, the Court emphasizes that the VRA
requires the County Line Rule to be subordinated only to the
extent reasonably necessary to remedy a § 2 violation.
Accordingly, Plaintiffs' demonstration maps should
attempt to honor the County Line Rule to the extent doing so
is consistent with the VRA.

The
Court applies the analytical framework for intentional vote
dilution claims under § 2 of the VRA and the Fourteenth
Amendment as discussed in the congressional plan opinion. For
§ 2 results claims, the Court applies the
Gingles framework, including as discussed above.

The
United States asserts intentional vote dilution claims with
regard to the entire plan, but points to specific districts
as proof of intent, including districts in the Rio Grande
Valley (including specifically HD41), HD35, Nueces County, El
Paso (HD77 and HD78), Dallas County (HD103, HD104, and
HD105), Bexar County (HD117 and HD118), and Harris County
(HD137 and HD149). Docket no. 1304 at 2 n.1. The United
States relies on circumstantial evidence as well as direct
evidence, including: (1) the nudge factor emails and evidence
that the nudge factor was implemented in certain Latino
opportunity districts that elected an Anglo-preferred
candidate in 2010; (2) racially focused statements by
legislators and districting insiders showing they thought and
spoke in terms of race; and (3) precinct splits, including
the high number of splits in general (412 in Plan H283) and
the indication that many splits were racial and indicate the
use of race as a proxy for partisanship given that accurate
political information is not available below the precinct
level, while racial data is. Docket no. 1279 at 11-14.

The
Perez Plaintiffs also complain that Plan H283
“intentionally discriminated against minority
voters.” Docket no. 960 ¶ 28. They (joined by the
NAACP Plaintiffs) specifically allege such discrimination in
Dallas County, Tarrant County, Harris County, Bell County,
McLennan County, Fort Bend County, Nueces County, Bexar
County, and HD41. Id.;; docket no. 1303; docket no.
601. The NAACP alleges that Plan H283 was developed with the
intent to disadvantage African-American and other minority
voters. Docket no. 900 ¶ 62.

MALC
challenges Plan H283 as a whole as intentionally diluting
Latino voting strength by failing to draw new opportunity
districts despite the population growth, using the County
Line Rule to avoid drawing minority opportunity districts
required by § 2 and diminishing Latino voting strength,
packing and cracking politically cohesive Latino and minority
communities, manipulating population, and racial
gerrymandering. Docket no. 897 ¶¶ 2-10. MALC also
specifically alleges that mapdrawers: pretextually used the
County Line Rule to avoid drawing a new Latino opportunity
district in the Midland/Odessa area of West Texas (¶
38); eliminated a Latino opportunity district in Nueces
County (¶ 42); failed to draw an additional Latino
opportunity in Harris County (¶¶ 47-48); failed to
provide minority opportunity in Fort Bend County and
unnecessarily fragmented the minority population there to
minimize its political strength (¶ 51); failed to draw
an additional minority opportunity district in Bell County
and intentionally fragmented the minority community in
Killeen to minimize its political impact (¶¶ 54,
56); intentionally fragmented minority population while at
the same time overpopulating Latino majority districts in
Dallas County, leading to the failure to create at least one
and possibly two additional minority opportunity house
districts in Dallas County (¶ 57); impermissibly focused
on race and targeted low-turnout Hispanic voters for
inclusion in HD117 in Bexar County to protect incumbent
Republican John Garza (¶ 58); and drew the border
between HD77 and HD78 in El Paso with racially discriminatory
intent (¶ 59).

Defendants
assert that the mapdrawers' application of the County
Line Rule is not evidence of intentional vote dilution
because it was a consistently applied neutral, traditional
districting principle. Docket no. 457 at 68. Defendants
further generally deny any improper use of race, arguing that
any consideration or use of race was only as needed to comply
with the VRA.

A.
El Paso County

Plaintiffs
assert that the El Paso County configuration, particularly
HD77 and HD78, is evidence of intentional vote dilution.
Plaintiffs assert “nudge factor” claims against
HD78 and contend that it intentionally does not provide
Latinos equal opportunity in an effort to protect the
Republican incumbent Dee Margo. Plaintiffs also assert that
five compact Latino opportunity districts should have been
drawn in El Paso County compared to only four opportunity
districts in Plan H283. Although the HCVAP of HD78 is over
50% (55.2%), Defendants admit that “Plan H283 did not
create an additional majority-Latino district in El Paso,
” docket no. 413 FF71, presumably because it did not
meet their 50% SSVR threshold even though it was (and all
four other districts in El Paso County were) over 50% HCVAP.

The
United States asserts that mapdrawers' intentional
refusal to create a fifth Latino opportunity district in El
Paso, even though it could be done without violating the
County Line Rule or other traditional districting principles,
and instead making a “policy choice” to protect
the Anglo incumbent was intentional vote dilution. Docket no.
1279 at 36, 39-40. To do this, the United States argues,
Downton manipulated the SSVR in HD78 and analyzed election
data to ensure that the Hispanic candidate of choice was
unlikely to be elected. Docket no. 1279 at 40.

The
Task Force Plaintiffs argue that the Latino population
“could be more evenly spread among all five districts
in El Paso County, ” giving Latinos the opportunity to
elect their candidate of choice in all five districts, and
that Plan H283 packs Latino voters in El Paso County into the
other districts to prevent Latino voters in HD78 from
electing their candidates of choice. Docket no. 634 FF458,
459; docket no. 1282 at 2. The Task Force Plaintiffs contend
that HD78 in Plan H283 is not a Latino opportunity district
but that it could be drawn as an additional Latino
opportunity district as in their demonstration Plan H292.
Docket no. 1282 at 6.

MALC's
Third Amended Complaint notes that the border between HD77
and HD78 has a bizarre shape with deer antler protrusions
that split multiple precincts between these two districts.
Docket no. 897 ¶ 59. MALC notes that its Plan H205
creates five reasonably compact majority-SSVR and
majority-HCVAP districts in El Paso. Docket no. 412 at
18.[16]

Defendants
assert that the “possibility of creating an additional
Latino-majority Democratic district does not obligate the
State to create it” and that Plaintiffs have failed to
show that the totality of circumstances required such a
district, especially given that “Democratic voters are
consistently successful in electing their candidates of
choice in El Paso County” and “the alleged number
of Latino candidates of choice elected to the House from El
Paso County—four out of five—is proportional to
the Latino percentage of citizen voting age
population.” Docket no. 457 at 33.

Defendants
further assert that the El Paso map was developed and agreed
to by the five-member delegation, four of whom were Democrats
and members of MALC, and all of whom were elected from
HCVAP-majority districts. Docket no. 1249-1 at 10. Defendants
point out that under both Plan H100 and Plan H283, all five
districts were over 50% HCVAP and all but HD78 were over 50%
SSVR, and assert that the levels of both were
“substantially similar across both plans.” Docket
no. 1249-1 at 13. Defendants argue that “there is no
evidence that the configuration of HD78 deprives any Latino
voter in El Paso County of an ‘equal opportunity'
to participate in the political process or to elect
candidates of their choice” and that, even if
Plaintiffs could satisfy all three Gingles
preconditions, they fail to “prove that the totality of
circumstances requires the State to restructure HD78 to
unseat the incumbent” because “Latinos are more
than proportionally represented in El Paso County's House
delegation, ”[17] “[t]he only possible basis for
Plaintiffs' claim is the Legislature's failure to
maximize Latino representation, ” and “[t]he
Legislature's decision to maintain existing Latino
population levels in the district, presumably offering some
protection to the incumbent, does not support a finding of
vote dilution.” Docket no. 411 at 42; see also
docket no. 457 at 31-32.

The
Court finds that Downton reconfigured the border between HD77
and HD78 to intentionally dilute the Latino vote in HD78.
Although Pickett, the County delegation dean, submitted two
County proposals to Solomons, Downton chose the one that was
not preferred by Pickett, [18] and he then made further
changes to the border between HD77 and HD78 without input
from the delegation. See TrJ2103 (Downton did not
incorporate input from Margo or Marquez). The evidence
appears undisputed that, after choosing to go forward with
the Marquez map from the El Paso County delegation, Downton
made further unilateral, race-based changes to the border of
HD77 and HD78, ostensibly to address concerns raised by David
Hanna about the fact that the SSVR of HD78 had dropped below
benchmark levels. Hanna's memo stated that this
“risk of retrogression . . . could easily be remedied
by swapping some precincts with an adjoining district,
” especially in light of the disparity in SSVR between
HD78 and the other El Paso districts. D-122. However, rather
than follow Hannah's advice to increase the SSVR of HD78
by swapping a few precincts, Plaintiffs contend that Downton
surgically split precincts and moved individual census blocks
between HD77 and HD78, while monitoring election data to
ensure that he did not create a Latino opportunity district.
Docket no. 1279 (United States Brief) at 39-40. The Court
agrees with this assessment.

Although
Downton claimed to make these race-based splits with the goal
of complying with § 5 by raising the SSVR of HD78
(TrJ2002, TrJ2102), his so-called “compliance”
with § 5 was intentionally superficial because he wanted
to protect the Republican incumbent elected in 2010, who was
not the Latino candidate of choice. Downton's changes
were designed to appear to comply with § 5 by increasing
the SSVR of HD78, but without increasing or ensuring Latino
ability to elect, which is the basis upon which § 5
permits such race-based districting actions. Downton's
precinct splits were deliberate and based on more than simply
increasing SSVR; his purpose was to increase the SSVR while
simultaneously ensuring that election success rates remained
minimally improved for Latinos.

Downton
achieved his purpose by increasing the total SSVR by 1% (and
non-suspense SSVR by .9%), while increasing election
performance for Latinos by only .3 or .4%. PL-503; D-109.
Further, Downton and mapdrawers knew from the OAG 10 that
although HD78 remained at 2/10 wins for Latino-preferred
candidates, the margin of victory for the two prevailing
Latino-preferred candidates had been reduced from the
benchmark. US-190; US-190A. This is not compliance with
§ 5, which looks to numerous factors, including Latino
election success, in determining whether a district has
“ability to elect, ” and does not just focus on a
single demographic such as SSVR. In fact, increasing the SSVR
while at the same time monitoring Latino ability to elect to
ensure that it is not correspondingly increased is
antithetical to the purpose of § 5 and the VRA and is
intentionally racially discriminatory. The changes cannot be
excused as mere partisan gerrymandering because of their
racially discriminatory nature. Given the existence of
racially polarized voting in El Paso County and the totality
of circumstances, this manipulation constitutes intentional
vote dilution in violation of § 2 of the VRA and the
Fourteenth Amendment.

In sum,
the § 2 results claims in El Paso County are moot, but
the Court finds that mapdrawers intentionally diluted the
Latino vote in violation of § 2 of the VRA and the
Fourteenth Amendment with regard to HD78.

B.
Bexar County

Benchmark
HD117 was a Latino opportunity district, electing the
Hispanic candidate of choice in three out of the five last
endogenous elections. In 2010, it elected Republican John
Garza, who was not the Latino candidate of choice. Numerous
Plaintiffs contend that the Legislature intentionally diluted
Latino voting strength in the district to protect Garza.
Plaintiffs[19] argue that HD117 was no longer a Latino
opportunity district in Plan H283 despite its majority-HCVAP
and majority-SSVR status. The D.C. Court found that HD117 was
an ability-to-elect district in the benchmark, but was no
longer an ability district in Plan H283. Texas v. United
States, 887 F.Supp.2d 133, 170-71 (D.D.C. 2012),
vacated on other grounds, 133 S.Ct. 2885 (2013). Based
on a preliminary finding that mapdrawers were impermissibly
focused on race in trying to make HD117 more Republican, this
Court remedied the “not insubstantial” § 5
claim in the interim plan, reconfiguring HD117 to return it
to benchmark performance levels. Docket no. 690 at 6.

The
Task Force Plaintiffs bring a “nudge factor”
claim against HD117 in Bexar County. The United States also
asserts a nudge factor claim, arguing that mapdrawers
replaced high-turnout Hispanic voters with poor, low-turnout
Hispanic precincts to increase Hispanic population levels but
decrease SSVR, Hispanic turnout, and Hispanic electoral
performance. Docket no. 1279 at 41. MALC also alleges that
“[i]n creating a district to safely re-elect Rep. Garza
the state impermissibly focused on race by targeting
low-turnout Latino precincts.” Docket no. 897 ¶
58.

Defendants
argue that the Bexar County map was developed by the
ten-member delegation, led by Democrats Villarreal and Ruth
Jones McClendon. Docket no. 1249-1 at 15. Defendants contend
that Garza wanted rural areas because he viewed them as more
conservative and more likely to vote Republican, and that he
wanted to create a rural, conservative district outside the
City of San Antonio[20] to bolster his re-election prospects
while maintaining SSVR over 50%, and that this is not
evidence of racial animus. Docket no. 1249-1 at 17, 1249-2 at
23 (citing TrJ399 (Garza), TrJ1518, TrJ1523 (Interiano)).
Defendants point to Farias's testimony that it was a
partisan decision. Docket no. 1272 at 56 (citing Tr353-54).

Defendants
argue that Speaker Straus and his staff determined that in
order to achieve these goals, HD117 needed to include rural
areas of southern Bexar County that were previously
represented by Farias under the benchmark. Docket no. 1249-2
at 23 (citing TrJ1559 (Interiano)). Defendants assert that
ultimately HD117 was agreed to by Rep. Villarreal and 9 of 10
members of the Bexar County delegation, that even if Garza
had an improper motive, there is no evidence other members of
the delegation were aware of that motive, and that Plaintiffs
have not shown that Garza's individual motivations were a
substantial or motivating factor behind the Legislature's
adoption of the plan. Docket no. 1249-2 at 23-24; docket no.
1272 at 54.

It is
undisputed that Garza's initial ideal district was
rejected by redistricting leadership because it fell below
50% SSVR and that mapdrawers and redistricting leadership
felt that HD117 had to be maintained above 50% SSVR to avoid
retrogression. Defendants' argument that this was an
agreed delegation map is demonstrably false with regard to
the configuration of HD117. Rather, the evidence is clear
that Garza's and Larson's staff worked with Interiano
to draw the configuration of HD117 that was placed into Plan
H283, and that Farias vigorously objected to the
configuration of his district. The delegation members (except
Garza and Straus) also voted against the motion to table
Farias's proposed amendment. D-190 at 2294-95.

Interiano
worked to draw a district with exactly 50.1% SSVR to maintain
its appearance as a Latino opportunity district and avoid
retrogression under the mapdrawers' majority-SSVR
criterion, while minimizing Hispanic turnout. He added in
areas such as Somerset and Whispering Winds with higher
Hispanic population but low Hispanic voter turnout and
removed areas inside San Antonio, such as areas of South San
Antonio ISD, that had highly mobilized Hispanic voters.
Hispanic population was manipulated to maintain exactly 50.1%
SSVR while minimizing Hispanic turnout and electoral
performance.

Although
Interiano testified that they were simply trying to balance
increasing SSVR with “keeping political numbers up,
” his explanations for the district were not credible,
as discussed in the fact findings. His testimony that Garza
wanted to stay outside the City was not credible, as noted.
His testimony that Garza was concerned with water issues also
was not credible, given that Garza himself testified that the
political issues surrounding Bexar Met were independent from
redistricting, and he did not have any goals in redistricting
relating to taking more or less of Bexar Met territory.
TrJ405-08. Interiano's denial of using turnout to shape
the district is not credible.

Rather,
the Court finds that Interiano drew the district to increase
SSVR while intentionally minimizing any gains in Latino
electoral performance. This is consistent with Garza's
own testimony. Garza testified at his deposition that his
ideal district went farther north because the area was
“more Anglo and more conservative, ” and he
preferred more Anglo and more conservative areas because
“[t]hey would tend to vote Republican.” PL-454
(Garza 10-19-11 depo.) at 30-31; TrJ367-69 (Garza). He also
testified that he and his staff had looked at turnout,
including the turnout between Anglos and Hispanics. TrJ373.
He testified that rural Hispanic turnout tended to be low,
and he thought Somerset Hispanic turnout would be low.
TrJ374, TrJ403-04. Further, Interiano and Garza's staff
knew that Garza did not tend to win SSVR-majority precincts.
PL-1664. The wishes of senior member Farias to maintain his
relationship with Whispering Winds and Somerset were ignored
and were not permitted to interfere with the goal of
protecting Garza by suppressing Latino electoral performance.
And Solomons' objection to Farias's proposed
amendment, which would have kept the district at 50.1%
SSVR—that it contained more split precincts—was
obviously pretextual given the number of split precincts in
the plan created by his own mapdrawers.

The
final configuration of HD117 includes a very large gap
between HCVAP and SSVR of 13.7 points, well beyond any gap in
any other House district.[21] By minimizing Hispanic voter
registration and turnout, Interiano successfully decreased
the performance of HD117. According to Handley, HD117's
performance on the exogenous election index went from 60% to
20%. Considering all the evidence, that Court finds that
mapdrawers intentionally drew HD117 with 50.1% SSVR but with
lower performance for Latinos by manipulating Latino
population and turnout. Interiano was given authority to draw
the maps by redistricting leadership, and his knowledge and
motives must be imputed to the Legislature as a whole,
regardless of whether individual members of the Legislature
were aware of the information when they voted for the map.
The configuration of HD117 is evidence of intentional vote
dilution under § 2 of the VRA and the Fourteenth
Amendment.

In sum,
any § 2 results claims in Bexar County are moot, but the
Court finds that mapdrawers intentionally diluted the Latino
vote in HD117 in violation of § 2 and the Fourteenth
Amendment.

C.
Nueces County

It is
undisputed that Nueces County had two benchmark Latino
opportunity districts, though they both elected Republicans
in 2010. It also contained part of a third district
represented by Anglo Republican Todd Hunter. When faced with
slower population growth in Nueces County such that it would
only be entitled to two districts under the County Line Rule,
Hanna advised mapdrawers that they had three options: (1)
draw one “performing” Hispanic district and one
not; (2) draw two equally Hispanic districts, which may not
perform reliably; or (3) see if both Latino opportunity
districts could be preserved by splitting county lines.
D-122. Hanna advised that the County Line Rule would have to
yield to the VRA if retrogression could be avoided by
splitting the county and it would clearly contribute to total
Hispanic voting strength statewide. As noted in the fact
findings, mapdrawers chose the first option because they felt
it allowed them to maintain more Republican seats and protect
Republican Anglo incumbent Hunter. Mapdrawers did not look
into whether two Hispanic districts could be maintained in
Nueces County, either wholly within Nueces County or by
breaking the County Line Rule.[22]

Defendants
contend that the reduction in population combined with the
County Line Rule eliminated the minority district in Nueces
County, and the delegation proposed the new districts. They
contend that the configuration reflects only partisan and
neutral districting principles and does not violate the VRA.
The configuration of Nueces County remains unchanged in the
current plan.

The
§ 2 results claim in Nueces County presents two
questions: (1) assuming only two districts are required
within Nueces County, did plaintiffs prove a § 2
violation by the Legislature's failure to draw both as
Latino opportunity districts? and (2) have Plaintiffs proven
that the VRA requires more than two districts to be drawn in
Nueces County (i.e., a County Line rule violation)?

Defendants
argue that Plaintiffs fail to prove a § 2 violation
because Nueces County was only entitled to two districts and,
“[a]ccording to the only population data available at
the time the Texas House map was drawn, Nueces County's
total SSVR percentage was 49.5%” such that creating two
SSVR-majority districts within Nueces County was impossible.
Docket no. 411 at 42-43. It is true that, at the time the
first drafts of the map were created, the only current data
mapdrawers had available was SSVR. Because Nueces County was
less than 50% SSVR, it was mathematically impossible to draw
two SSVR-majority districts within the County. However,
mapdrawers knew that SSVR was typically lower than HCVAP,
that Nueces County had been over 50% HCVAP in 2000, and that
Hispanic population had increased while Anglo population had
declined, meaning they had every reason to believe that the
HCVAP of Nueces County was over 50% even without more recent
HCVAP data.

Moreover,
Defendants' assertion that HCVAP data was not available
is simply untrue. The HCVAP data was available to mapdrawers
by April 21, 2011, before the map went to the floor, and
would have shown that Nueces County HCVAP was over 50%.
Interiano stated at trial that he knew that the HCVAP of
Nueces County exceeded 50%, Tr1463, and he also would have
been aware that HCVAP was the appropriate measure for
determining whether § 2 required a Latino opportunity
district. E.g., US-76 (Opiela November 20, 2010
email, with Interiano copied, discussing that they needed to
evaluate districts in terms of VAP and CVAP and stating that
Fifth Circuit law clearly established CVAP as the standard).
Downton testified repeatedly that he used a 50% HCVAP
standard for measuring Latino opportunity districts.
Nevertheless, Interiano as primary mapdrawer and other
redistricting leaders continued to focus solely on SSVR for
Latino districts in the Texas House plan, and never explored
whether two HCVAP-majority districts could have been drawn
wholly within Nueces County. TrA64-65 (Interiano).

In
their briefing, the Task Force Plaintiffs assert that because
Nueces County was over 50% HCVAP, two HCVAP-majority Latino
opportunity districts could have been drawn wholly within the
County.[23] However, while it is certainly
theoretically and mathematically possible to draw two
HCVAP-majority districts wholly within Nueces County, no
plaintiff has provided such a proposed map or shown that the
Latino populations in such districts would be compact, taking
into account traditional redistricting principles. Thus,
Plaintiffs fail to satisfy their burden under
Gingles of showing that two Latino opportunity
districts could be drawn wholly within Nueces County
(i.e., without violating the County Line Rule).

Plaintiffs
have proffered demonstration maps that would maintain two
Latino-majority districts in Nueces County by breaking the
County Line Rule. Because Solomons decided never to break the
County Line Rule to comply with the VRA, mapdrawers did not
explore whether to include more than two districts in Nueces
County or whether doing so would have been required by §
2 or § 5 of the VRA, despite Hanna's advice to
investigate this issue. This Court has found, and Defendants
do not dispute, that both Nueces County-based benchmark
districts HD33 and HD34 were majority-Hispanic,
majority-HCVAP, and majority-SSVR Latino opportunity
districts, even though they did not elect the Latino
candidates of choice in 2010. Although Defendants have argued
that this was an agreed-upon delegation map, see
e.g., docket no. 1249-1 at 30, the evidence is clear
that mapdrawers and redistricting leadership made the
decision to eliminate HD33 and to create only one Latino
opportunity district within Nueces County.

Plaintiffs'
demonstration maps would purportedly maintain two Latino
opportunity districts, but they subordinate the County Line
Rule in order to do so. Defendants' objections to the
maps include the violation of the County Line Rule and racial
gerrymandering. The Court finds that consideration of this
issue is premature—the Court cannot hold that the
Legislature was required to break the County Line Rule to
maintain two Latino opportunity districts in Nueces County
without Plaintiffs first showing that it was reasonably
necessary to comply with § 2 (i.e., that two
Latino opportunity districts could not be maintained
consistent with the County Line Rule). Because, as explained
above, Plaintiffs have failed to make that showing, this
issue is not ripe for consideration.[24]Thus, with regard to
Nueces County, Plaintiffs have failed to demonstrate a
violation of § 2's results test at this time.
However, they may continue to pursue this claim with regard
to Plan H358 in the 2013 plan trial because the Nueces County
configuration remains unchanged from Plan H283.

In
addition to the § 2 results claims based on the failure
to maintain two Latino opportunity districts in Nueces
County, Plaintiffs contend that the decision to eliminate an
existing Latino opportunity district in Nueces County was
intentional vote dilution. Plaintiffs also argue that the
district lines for those districts that remained in Nueces
County are evidence of racial gerrymandering and intentional
vote dilution. See, e.g., docket no. 1279 at 49-50.
The United States notes that Plan H283 includes “a
convoluted line that ensures Anglo control over HD32, ”
that HD34 “was packed with a greater share of Spanish
surnamed registered voters than any Nueces County district
prior to the 2011 redistricting, leaving HD32 with a
substantial majority of the Anglo voters in Nueces County,
” and HD34 was overpopulated compared to HD32. Docket
no. 1279 at 50-51. The United States also contends that the
“protuberance from HD34 . . . ensured that no potential
Hispanic candidate with recent legislative
experience—including the Republican incumbent of HD33,
the former representative of HD33, and the former
representative of HD34—would reside in the new HD32 to
challenge the Anglo incumbent, ” and the State's
witnesses provided no plausible alternative explanation for
the convoluted boundary. Docket no. 1279 at 51. The Task
Force also contends that the bizarre extensions along the
border of HD32 and HD34 are evidence of racial
gerrymandering. Docket no. 1282 at 64.

The
Court agrees that the facts and evidence concerning the
decision to eliminate HD33 in Nueces County demonstrate
intentional vote dilution. Specifically, the Court relies on
(1) the fact that redistricting leadership eliminated an
existing Latino opportunity district without considering
whether two Latino opportunity districts were required by
§ 2 of the VRA under the appropriate standard (HCVAP),
(2) the fact that they decided to eliminate ability district
HD33 without replacing it elsewhere but instead raised the
SSVR of two existing ability districts to claim an
“offset” under § 5 of the VRA and attempt to
ward off § 2 challenges in bad faith, [25] and (3) the
ultimate configuration of the remaining Nueces County
districts as demonstrating racial gerrymandering.

Mapdrawers
intentionally did not consider whether § 2 required two
districts in Nueces County, and used a false reliance on SSVR
and the County Line Rule to justify their refusal to maintain
two Latino opportunity districts in Nueces County. Further,
they knew that HCVAP was the proper measure for a Latino
opportunity district and had HCVAP data available before the
map went to the floor, but insisted on using SSVR as the
measure because SSVR was lower (and lower than 50%), and it
allowed them to argue that mathematically, two SSVR-majority
districts could not be drawn. Although Nueces County was
majority HCVAP and had been since at least 2000, they refused
to consider whether two HCVAP-majority districts could be
drawn wholly within the County. In addition, mapdrawers and
redistricting leadership steadfastly refused to consider
whether the County Line Rule might have to yield to maintain
two Latino opportunity districts in the area, despite
Hanna's advice to the contrary. The Court finds that
their refusal to consider the proper requirements of § 2
and to attempt to comply with it was in bad faith and
intended to limit Latino opportunity.

Rather
than attempting to comply with § 2 by maintaining two
Latino opportunity districts, mapdrawers and redistricting
leadership attempted to use § 5 as a shield for their
failure to attempt compliance with § 2 and for
eliminating an existing Latino opportunity district.
Mapdrawers and redistricting leadership asserted that, under
§ 5, they could “offset” the loss of HD33 as
an ability district by creating a new 50% SSVR district
elsewhere in the State. Mapdrawers chose two districts that
were already performing reliably for Latino voters despite
being under 50% SSVR (HD90 and HD148) and raised their SSVR
over 50%, claiming that these “new” Latino
districts could offset the loss of HD33 and avoid statewide
retrogression for preclearance purposes. However, as the D.C.
Court found (and as redistricters knew), these were already
ability districts, and thus increasing their SSVR did not
create any “new” ability district to offset the
loss of HD33. Mapdrawers and redistricting leadership relied
in bad faith on a 50% SSVR standard as the definition of
“ability district” despite clear DOJ guidance to
the contrary so that they could claim compliance with §
5 while simultaneously ensuring that no new Latino districts
were created to offset the loss of HD33.

At the
same time, increasing the SSVR in HD90 and HD148 increased
the number of HCVAP-majority districts in the plan by at
least one (HD148) and arguably two (using 2005-2009 ACS data,
the HCVAP was of HD90 was 49.7 2%). Because § 2
results claims require plaintiffs to show that more
HCVAP-majority districts could have been drawn, mapdrawers
acted in bad faith to try to thwart such claims by
artificially inflating the number of HCVAP-majority
districts—creating them where there was no § 2
right because the districts were already performing for
Latinos.

Redistricting
leadership ignored warnings from Nina Perales in her April 27
letter that the HD33 loss was not offset by artificially
increasing the SSVR in HD90 and HD148 and that additional
Latino opportunity districts were required. They chose to
increase the SSVR in districts that were already
performing for Latinos so that they could claim VRA
compliance and minimize the number of Latino opportunity
districts without losing or jeopardizing any Republican
incumbent seats—that is why they did not raise the SSVR
in El Paso County's HD78, which elected a Republican in
2010. Mapdrawers' use of race to increase the SSVR in
HD90 and HD148 in the name of VRA compliance turned the VRA
on its head—instead of using race to provide equal
electoral opportunity, they intentionally used it to
undermine Latino voting opportunity.

Further,
there is evidence that the mapdrawers (including specifically
Rep. Hunter) racially gerrymandered the districts that
remained in Nueces County to further undermine Latino voting
strength. There are ten precinct splits along the HD32/HD34
border, see US-387, indicating that mapdrawers were
likely using race to assign population since accurate
political data is not available below the precinct level.
Although mapdrawers claimed that they needed to make HD32
“performing, ” there is no evidence that they
needed to put as many Hispanic voters in HD32 as they did,
either to comply with § 2 or § 5. Thus, mapdrawers
intentionally packed Hispanic voters into HD32 to minimize
their number and influence in HD34 and protect Hunter. As
discussed in the fact findings, there is also evidence that
they targeted low turnout minority areas for inclusion in
HD34 and intentionally drew out potential Hispanic rivals
(both Republican and Democrat), again to protect the Anglo
incumbent. And, as discussed below, there is evidence that
Hunter intentionally overpopulated HD32 (and underpopulated
his own HD34), without a legitimate justification for doing
so.

In sum,
Plaintiffs' § 2 results claims are not moot, but
Plaintiffs failed to prove them with regard to Plan H283.
Because this configuration remains unchanged in the current
plan, Plaintiffs may bring their results claims with regard
to the 2013 plan. However, the Court finds that redistricters
intentionally diluted Latino voting strength by eliminating
HD33 in Nueces County. Mapdrawers' use of race in HD90
and HD148 to “offset” this loss was not to comply
with the VRA but to intentionally dilute Latino voting
strength by (1) allowing redistricting leadership to claim
that they were complying with the VRAdespite eliminating HD33
and creating no new opportunity or ability districts; (2)
thwarting arguments that § 2 might require additional
opportunity districts by artificially inflating the number of
Latino-majority districts in the plan; and (3) racially
gerrymandering and utilizing population deviations to further
dilute the Latino vote in the remaining two Nueces County
districts. As discussed in the congressional plan opinion,
there is legally significant racially polarized voting in
Nueces County. Given the existence of racially polarized
voting and the history of discrimination and its legacy in
Nueces County, and considering the totality of circumstances,
the elimination of an existing Latino opportunity district
and ensuing racial gerrymandering in Nueces County is
intentional vote dilution in violation of § 2 of the VRA
and the Fourteenth Amendment.

D.
HD35

HD35
was and remains a district composed of whole counties, though
the county configuration was altered in Plan H283 and all
Hispanic population metrics were decreased from the benchmark
configuration. The United States contends that HD35 was a
Latino opportunity district in Plan H100 and is no longer in
Plan H283, and this is the result of intentional vote
dilution.

Docket
no. 1279 at 44-45.

The
Court agrees that benchmark HD35 was a Latino opportunity
district, though it elected a Hispanic Republican in 2010,
who was not the Hispanic candidate of choice. As drawn
pursuant to a court remedy in 2001, it had 51.5% SSVR. Over
the decade, it elected the Hispanic-preferred candidate four
out of five times, for an endogenous election index score of
80%. Its exogenous election index score was 40%. By the time
of redistricting, the SSVR of the district had risen to
55.4%, yet Plan H283 reduced it to 52.7% through its new
configuration of whole counties. Its exogenous election score
dropped to 20%. Because of the SSVR reduction, Hanna advised
mapdrawers to perform election analysis to measure its
performance, and Interiano and mapdrawers knew from the OAG
election analysis that the performance for the Hispanic
candidate of choice decreased. Dr. Arrington testified that
benchmark HD35 was an effective Latino opportunity district,
but that it was no longer effective in Plan H283. TrJ119,
TrJ134-35.[26]

During
the session, MALDEF offered Plan H115 that increased the SSVR
of HD35 to 58.2%, but it broke the County Line Rule. In
addition, Rep. King (an Anglo Democrat) proposed an amendment
(Plan H161) that would have changed the county configuration,
but the incumbent Aliseda objected. He stated that the
amendment increased his SSVR “a little bit more”
(he stated it was less than .02%), but asserted that was not
the reason he objected; rather, he asserted, it was because
it made his district “into a more democrat
district.” D-13 at ¶ 183-84. Rep. Coleman offered
Plan H232, which he stated “strengthened existing
Latino opportunity district HD35” and made it more
likely to perform. Martin opined that Plan H232 strengthened
HD35 while preserving other Latino districts in the region
and complying with the County Line Rule. Joint Expert Ex. E-5
(Martin Report) at 13-14.

According
to the D.C. Court's opinion in the § 5 preclearance
litigation, the parties agreed that HD35 in Plan H283 was not
an ability district, but they disagreed on whether it was an
ability district in the benchmark and thus whether there was
retrogression. Texas v. United States, 887 F.Supp.2d
133, 167 (D.D.C. 2012) (vacated on other grounds). The D.C.
Court found that it had been an ability district because it
had a high endogenous success rate (80%) despite lower
exogenous index scores. The D.C. Court concluded that it no
longer was an ability district in Plan H283 based on the
“low exogenous election results for the enacted
district combined with HCVAP changes that push the district
even closer to the majority line.” Id. at 168.
It noted that this particular district presented “a
close and very difficult case” and that it might have
reached a different conclusion if presented “with more
or different evidence, ” but that the State had not met
its burden of proof. Id. at 168 n.37.

This
Court finds that HD35 remains an opportunity district in Plan
H283. The evidence shows that benchmark HD35 performed well
for Latinos despite weak exogenous election scores. Some
changes to the district were required by the fact that it was
underpopulated by 9.4%. Although Handley's index and the
OAG 10 showed a one election decrease in Latino performance
on the exogenous index between the benchmark and enacted
districts, Dr. Engstrom's analysis actually showed an
increase in Latino performance from 2-5 to 3-4.
Plaintiffs have failed to meet their burden of proof of
demonstrating that HD35 is no longer an opportunity district.
In addition, as discussed in the fact findings, there is no
evidence to support the United States' contention that
mapdrawers manipulated turnout in this district. Accordingly,
the Court finds that this district does not support a claim
of intentional vote dilution or racial gerrymandering.

E.HD41

Several
Plaintiffs, including MALC, Perez Plaintiffs, [27] and the
United States, challenge HD41 as the product of racial
discrimination and intentional vote dilution. Defendants
contend it is merely the product of partisan gerrymandering
to protect newly-Republican Aaron Peña.

The
United States argues that HD41 was changed so significantly
and contains so many split precincts that its continued
status as an opportunity district is in question. Although
its HCVAP and SSVR percentages decreased by around 5%, they
remained high at 72.1% HCVAP and 63% total SSVR. The D.C.
Court concluded that HD41 remained a Hispanic ability
district in Plan H283 because the court applied a 65% HCVAP
ability presumption that was not disproved. Texas, 887
F.Supp.2d at 169-70. Further, Hidalgo County was over 85%
HCVAP. Dr. Engstrom concluded that HD41 in Plan H283 remained
a Latino opportunity district. The Court finds that HD41
remains an opportunity district in Plan H283.

Nevertheless,
the Court finds that HD41 was drawn in part with racially
discriminatory (dilutive) motive. The United States argues
that the precinct splits in the district cannot be explained
by partisan motivation and were racially discriminatory.
Docket no. 1279 at 45. Dr. Arrington looked at all splits in
HD41 and found that they made the district more Anglo.
However, the most relevant splits are those made after Plan
H113[28] that actually involved some population.
As discussed in the fact findings, some of Downton's
precincts splits after Plan H113 were consistent with Anglo
maximization to increase the Anglo VAP of the district, and
they were not consistent with Republican maximization.
Although mapdrawers (including Peña) testified that
the changes were made to “maximize” the district
for Republican performance, election analysis results showed
that the changes resulted in a decline in Republican
performance, with corresponding increases in Democratic
performance. See US-517 (Red-225 Report for Plan
H113); D-109 (Plan H283 reports). Thus, the explanation that
the numerous precinct splits were made to
“maximize” the district for Republican
performance is not credible. Nor was other testimony offered
by mapdrawers that the numerous precinct splits were made
simply “to follow roads.”

As
noted in the fact findings, the district HVAP and HCVAP
population did not change despite the substantial
manipulation and precinct changes that occurred on April 17.
However, although the net effect of all the changes
made between Plan H113 and Plan H283 was not to make the
district more Anglo and less Hispanic, that does not negate
the fact that some particular precinct splits were made with
a racially discriminatory motive. In Plan H113,
Peña's district was significantly (4.92%) below
ideal population, while the neighboring districts were all
overpopulated. Downton recognized this as a potential problem
and worked with Peña to increase the population of the
district while “maximizing” it for
Peña's benefit.[29] However, because the area is
heavily Hispanic and the original configuration of the
district already contained the most Republican areas, Downton
had to work to increase the population of the district while
simultaneously maintaining the Anglo and Hispanic populations
in an attempt to protect Peña.

Downton
increased the population of the district by 857 persons (he
admitted to not increasing the population any more because it
would make the district less favorable to Peña), but
kept its racial population metrics basically the same, in
part by using precinct splits in a racially discriminatory
manner. Had he not utilized the precinct splits in such a
manner, the effect of increasing the population would have
been an increase in Hispanic population in the district,
making it more likely to perform for Hispanic voters (and
redistricters presumed, less likely to re-elect Peña).
Thus, although all of the precinct splits together did not
negatively impact the Hispanic population of the district,
the racially discriminatory precinct splits were used to
offset the racially favorable splits.

In
addition to manipulating total population, the SSVR of HD41
is significantly lower (63%/64.6%) than the other Hidalgo
County districts, which are 85.8%/86.4% (HD40), 82.2%/83.1%
(HD39), 85.1%/85.8% (HD36), and 90.8%/91.3% (HD31), and is
lower than any of those benchmark district's SSVR levels,
again demonstrating an intent to draw the district with fewer
Hispanic voters. The SSVR of Peña's district was
reduced, while the SSVR of three of the other districts was
increased, and at the same time mapdrawers knew that the
performance of HD41 for Latino voters decreased from 7/10 to
5/10 on the OAG 10. Although Solomons repeatedly touted the
map as “member driven, ” the Hidalgo County
configuration was not drawn with input from the other members
of the Valley delegation and disregarded member-constituent
relations in order to gerrymander the district, both
politically and racially.

The
Court thus finds that mapdrawers intentionally used race to
draw the district to perform less favorably for Latinos. They
also intentionally manipulated the SSVR and total population
to dilute the Latino vote in HD41 in order to protect an
incumbent who they believed would no longer be the Latino
candidate of choice given his decision to switch parties.
Given the existence of racially polarized voting in the
Valley (as found by Dr. Engstrom), the lingering effects of
past discrimination in terms of socio-economic factors, and
the totality of circumstances, the configuration of HD41 is
racially discriminatory and constitutes intentional vote
dilution in violation of § 2 and the Fourteenth
Amendment. Although the individual members of the Legislature
may not have been aware of this when they voted to pass Plan
H283, Downton was given the authority to make these changes
to the map and his intent must be imputed to the Legislature
as a whole.

F.
Cameronḧ媖ਿ䘪 Grande Valley configuration

The
benchmark plan contained six Latino opportunity districts
wholly within Hidalgo and Cameron Counties—four wholly
within Hidalgo County and two wholly within Cameron County.
The excess population in Cameron County was joined with
counties to the north in HD43, also a Latino opportunity
district. Plan H283 also creates six HCVAP-majority
districts[30] wholly within Cameron and Hidalgo
Counties (four within Hidalgo County and two within Cameron
County); the surplus of Cameron County is joined into HD43 to
the north, and the surplus of Hidalgo County is joined into
HD31 to the west; both HD31 and HD43 are Latino opportunity
districts.

The
Task Force and MALC assert that § 2 required the State
to create an additional district in the Rio Grande Valley by
combining the surplus population of Cameron and Hidalgo
Counties, creating seven Valley-based districts, and that
this would actually be more consistent with the County Line
Rule than the State's configuration. This was done in the
Court's interim map (Plan H309) such that seven districts
are wholly contained within Hidalgo and Cameron Counties,
with no spillover. This is also done in MALC's Plan H201
through the creation of HD144 and MALC's Plan H295
through the creation of HD35. Additional proposed plans
create a seventh Valley district but also include spillover
in another district, including Task Force Plan H292 (HD32)
and MALC Plan H205 (HD72).[31]

In
their 2011 briefing, Defendants contended that the
“undisputed evidence at trial showed . . . that
creating a new district in Hidalgo and Cameron would have
required the Legislature to violate the county-line rule in
other parts of the State.” Docket no. 411 at 44; docket
no. 457 at 29-30; see also TrA78 (Interiano)
(“I tried to do it, and I told David Hanna that I had
not found a way to put the population together without
causing a county line split further up the road.”).
This assertion has since been disproved, as shown in the
Court's interim plan H309. However, it is true that all
maps presented to the mapdrawers during the session that
created this district also had a county line break around
Nueces County.

Downton
testified that it was permissible to create the
Cameronḧ媖 County district, but it was not legally
required, and redistricters made a policy decision not to
create it. TrJ2094-95. Defendants argue that no voter in that
area suffered a § 2 injury from the State's chosen
configuration because all Cameron and Hidalgo County voters
are in Latino opportunity districts under either
configuration. Docket no. 1272 at 102.[32] The Court
agrees that if the Legislature created the required
number of § 2 districts and substantially addressed the
§ 2 violation, they had discretion in determining the
configuration of the districts. However, Plaintiffs are
arguing that creation of the Cameronḧ媖 district was
more consistent with the County Line Rule, recognized the
Latino growth in the Valley, and allowed for the creation of
an additional Latino opportunity district over the
number created in Plan H283, which could establish a § 2
violation.

Thus,
for Plaintiffs to succeed on their § 2 results claim,
they must demonstrate that creating this additional
Hidalgo঩麮 district creates more Latino
opportunity districts in South Texas (or statewide) than does
Plan H283. Although Plan H201 creates an additional Valley
Latino opportunity district over Plan H283 by adding HD144
and retaining HD33 by utilizing a county line split, HD35 is
no longer a Latino opportunity district, whereas it is in
Plan H283. Plan H283 has 13 South and West Texas Latino
opportunity districts (not including El Paso but including
Nueces County). Plan H201 has 14, but only because it
maintains HD33 in Nueces County district. Thus, it is really
the retention of HD33 as a Latino opportunity district that
results in an additional HCVAP-majority district over the
enacted plan. This issue therefore boils down to the Nueces
County issue, and the Court will not consider proposed maps
that split Nueces County to create an additional district
until it is shown that two Latino opportunity districts
cannot be drawn wholly within Nueces County.[33]

The
Task Force contends that Plan H292 adds HD33 in Nueces County
and HD35 in the Valley compared to Plan H283. But it does not
count HD35 in Plan H283 as an opportunity district. Counting
HD35 in Plan H283 as a Latino opportunity district, the only
additional district created is in Nueces
County.[34] Again that simply boils down to a Nueces
County issue. Plan H292 also has 25 districts in Harris
County, which has ripple effects in all the non-drop-in
county districts statewide because there is one less district
outside the drop-in counties.

MALC
Plan H295 creates seven districts wholly within Hidalgo and
Cameron Counties by moving HD35 to the Valley. Again,
however, it does not appear to create more Latino opportunity
districts other than the Nueces County district.

Plan
H205 purports to create an additional district over Plan
H283. It also splits Nueces County to create a Latino
opportunity district, and it includes 25 districts in Harris
County. Further, Plan H205 substantially disregards the
County Line Rule—Defendants argue that it violates the
County Line Rule at least 25 times. Docket no. 457 at 29-30;
docket no. 645 at 14-15. Plaintiffs must show that these
County Line Rule violations were reasonably necessary to
comply with § 2 and, given the Court's conclusion
below that the proposed West Texas districts are not
compelled by the VRA, resulting changes to that portion of
the map will also affect non drop-in county areas of the
State, making an analysis of the number of Latino opportunity
districts created in South Texas unreliable. Given these
issues and the fact that the current plan includes the
Hidalgo঩麮 district but not HD35, the Court finds that
this results claim is best resolved with regard to the 2013
plan in effect.

However,
certain Plaintiffs (including the United States and the Task
Force Plaintiffs), argue that the State's
“deliberate decision not to recognize explosive
Hispanic growth in the Rio Grande Valley through the creation
of an additional Hispanic opportunity district constitutes
intentional vote dilution.” Docket no. 1279 at 39. The
Court finds that Plaintiffs have failed to prove an
intentional vote dilution claim based on the failure to draw
the Cameronḧ媖 district. As noted, mapdrawers were not
presented with a plan that clearly created an additional
Latino opportunity district compared to what they had drawn,
and they had discretion in choosing how to configure the
Hidalgo and Cameron County districts to address § 2.

G.
Harris County

In
addition to their one person, one vote claims based on
population deviations (addressed below), Plaintiffs assert
§2 results and intentional vote dilution claims in
Harris County. Plaintiffs primarily complain that Defendants
did not create an additional minority opportunity district in
Harris County despite the minority population growth, but
also contend that the Legislature's decision to reduce
the number of districts in Harris County to 24 and to
eliminate HD149, which Plaintiffs contend was a tri-ethnic
coalition district, while protecting Anglo districts with
slower population growth, were racially discriminatory
actions designed to dilute the minority vote.

The
Task Force Plaintiffs argue that an additional Latino
opportunity district could have been drawn in Harris County.
MALC offers demonstration district HD144 in Plan H205 and
Plan H295 (though Plan H205 includes 25 districts in Harris
County).[35] The NAACP also complains about the
reduction of minority voting strength in HD144, which it
argues had naturally become viable for minorities given the
population growth, and argues that an additional minority
coalition district could have been drawn (by maintaining both
HD137 and HD149), as shown in Plan H202 (which has 24
districts in Harris County). Docket no. 625 at 5-7; docket
no. 1280 at 37.

Defendants
admit that “Plan H283 did not create additional
majority-Latino or majority African American districts in
Harris County, ” though they assert that the SSVR and
HCVAP of HD148 were increased over 50%. Docket no. 413
FF62.[36] They argue that the reduction of
districts in Harris County was not discriminatory but
“resulted from basic arithmetic and the combined legal
requirements of the Texas and United States
Constitutions.” Docket no. 457 at 69. They also assert
that the Democrat members never offered a proposed map such
that “Downton worked from a proposal supplied by the
Republican members of the delegation” and “then
accommodated Democratic changes to the extent
possible.” Id. Defendants argue that the
decision to apportion 24 seats in Harris County “did
not prevent the creation of an additional minority-majority
district” and that “Plaintiffs have not
demonstrated that the addition of another district in Harris
County would have resulted in an additional minority
opportunity district.” Docket no. 411 at 45. Defendants
also contend that neither HD137 nor HD149 was a protected
minority coalition district and that the decision to
eliminate them was partisan, not racial. Id. at
45-46.

In this
Court's interim plan H309, the Court found that
Plaintiffs had demonstrated a likelihood of success on the
merits of the § 2 claim in eastern Harris County,
specifically that Plaintiffs had presented numerous
demonstration plans illustrating that an additional compact
majority-HCVAP district was possible in eastern Harris
County, and made a preliminary finding that creation of a new
Latino opportunity district was justified by the totality of
circumstances. Docket no. 690 at 8-9. The Court's interim
plan thus reconfigured HD144 in the manner requested by
Plaintiffs to have a majority HCVAP. Id. The Court
also maintained both HD137 and HD149, finding that the §
5 claims were not insubstantial, and making no other claims
determinations. Id. This configuration remains in
the plan adopted by the Legislature and currently in effect
(Plan H358). Given that the current plan includes a district
similar to MALC's proposed HD144 and maintains both HD137
and HD149 with only 24 districts, the results claim is moot.

However,
Plaintiffs claim that the decision to reduce Harris County to
24 districts, the elimination of HD149, and the deliberate
failure to draw any new opportunity districts in Harris
County are evidence of intentional
discrimination.[37]

MALC
contends that redistricting leadership had discretion to
choose either 24 or 25 districts, yet chose 24 to avoid
drawing an additional Latino opportunity district in Harris
County. Docket no. 459 at 17.[38] Other Plaintiffs also complain
that the decision to decrease the delegation to 24 was
intentionally racially discriminatory because it would
eliminate a minority district. The Court finds that the
mapdrawers' decision to include only 24 districts in
Harris County was reasonable, given the language of the Texas
Constitution and simple math, and was not intentional vote
dilution. The Court notes that Hanna recommended rounding
down to 24 districts initially, even when he believed this
would mean the loss of a Republican seat. D-192. He noted
that 24 more closely tracked the constitutional language, and
that the risk of choosing incorrectly was
“catastrophic” in terms of affecting all
districts outside of the drop-in counties. D-135. The Court
is not convinced that past practice of rounding up indicates
pretext in this case, given that different decisionmakers
were involved in those decisions (different legislature and
the LRB), and that Democratic and minority members had voted
to round down in the prior legislative session when presented
with similar numbers. The Court does not find any evidence to
support the assertion that the decision to round down to 24
was racially discriminatory.

The
NAACP Plaintiffs argue that Texas ran afoul of the Supreme
Court's warning in Bartlett v. Strickland by
intentionally eliminating a performing minority district
(HD149)[39] in violation of the Fourteenth
Amendment. Docket no. 1294 at 14. They contend that Interiano
admitted dissolving HD149 despite knowing it was a district
in which a diverse group of minority voters elected the
candidate of their choice, Hubert Vo, because they did not
think the VRA required them to maintain it. Docket no. 1280
at 37 (citing Tr1482 (Interiano)). They argue that
“[t]his callous disregard for proven voting rights
gains from an extant cohesive minority population is
certainly evidence of an intent to discriminate . . .
.” Id.

The
Court need not decide whether HD149 was a protected coalition
district because the evidence does not sufficiently support
Plaintiffs' claim that it was targeted for removal
because it was a minority opportunity district or because its
elected representative was a minority candidate of choice,
rather than simply because it was electing a Democrat.
Mapdrawers and redistricting leadership did not believe it to
be a protected minority opportunity district and it was
chosen for removal because one district was being eliminated
and Republicans saw an opportunity to pair two Democrats,
thereby increasing Republican seats and protecting all other
incumbents.[40] The pairing of two Democrats was
consistent with Solomons' decision to always pair two
members of the same political party to theoretically give
each incumbent a chance to be re-elected in the general
election.

Plaintiffs
further contend that the enacted 24-district configuration in
Harris County intentionally diluted minority voting strength.
The Task Force complains that no new Latino opportunity
district was created and that instead Latino voters were
packed into other districts to minimize their electoral
influence. The Task Force Plaintiffs note that Hanna's
April 12 memo advised redistricting leadership to consider
whether a fifth Hispanic-majority district could be drawn and
whether it would be required by § 2, yet mapdrawers
ignored this advice. Docket no. 1274 FF472, 483, 749; docket
no. 1282 at 26, 33. Hanna testified that he was able to draw
a fifth Latino district. TrJ1207. Downton claimed he did not
attempt to draw one and does now know if anyone else did.
TrJ2052-53.

MALC
asserts that mapdrawers avoided creating a new Latino
opportunity district in Harris County by artificially
increasing the SSVR in HD148 (incorrectly cited as HD145)
even though it was already performing for Latino voters.
Docket no. 1185 at 13 n.29. MALC argues that this increase of
SSVR in a “district that the State itself has
characterized as a performing Latino opportunity district, to
avoid the development of a real new Latino opportunity
district in Harris County is not evidence of compliance with
Section 2, but rather evidence of intentional
discrimination.” Docket no. 412 at 20.

The
Perez Plaintiffs note that Anglo population in Harris County
declined such that Anglos are now only 33% of the population,
yet Plan H283 gives them control of 54% of seats. Docket no.
401 at 11.[41] They argue that “creative line
drawing” and population deviations were necessary tools
in this accomplishment. Docket no. 401 at 13 (citing Tr341-42
(Martin)).[42] They further note that, although
Interiano testified that they increased the SSVR in HD148 at
MALDEF's urging, Nina Perales sent a letter to Solomons
“specifically repudiating any such request.”
Id. at 13-14.[43]

The
Court finds that there is persuasive evidence of intentional
vote dilution in Harris County. Harris County is yet another
example of where the member-driven process was at odds with
§ 2 compliance. Redistricting leadership assumed that
county delegations would consider VRA compliance because the
delegations contained minority members, yet in Harris County
the minority members were essentially shut out of the initial
map-drawing process.[44] Accordingly, although Hanna had
recommended considering whether an additional Latino
opportunity district could be drawn (as he was able to), this
recommendation was ignored. Anglo Republican districts in
eastern Harris County, which had grown more slowly than the
more heavily minority areas, were protected, and no new
minority district was considered, even though the evidence
shows that a new Latino opportunity district could have been
drawn that reflected the Hispanic population growth in Harris
County.[45]

Faced
with a map that failed to create any new Latino opportunity
districts, mapdrawers then artificially inflated the SSVR and
HCVAP of existing Latino ability district HD148 to claim VRA
compliance. Redistricting leadership feigned VRA compliance
but used it to undermine minority voting strength instead of
truly complying with the Act. They claimed that newly
majority- SSVR/HCVAP HD148 could offset the loss of existing
ability district HD33 in Nueces County and used it to thwart
claims that an additional Latino opportunity district was
required by § 2 based on the number of HCVAP-majority
districts in Harris County.

Yet the
evidence is clear that mapdrawers already viewed HD148 as one
of the performing Latino districts in Harris County. And as
the Task Force Plaintiffs note, Downton agreed that raising
the SSVR of HD148 to 50% did not enhance the ability of
minority voters to elect their candidate of choice. Docket
no. 1282 at 60; docket no. 1274 FF822; TrJ2050 (Downton).
Thus, mapdrawers were using this superficial compliance as a
tool to avoid creating any new minority opportunity districts
(more specifically, to defend their failure to create any)
and to mask the loss of HD33 as an existing opportunity
district.[46]

Given
the existence of racially polarized voting, the lingering
effects of past discrimination, and the totality of
circumstances, the Court finds that the Harris County
configuration is the result of intentional vote dilution in
violation of §2 and the Fourteenth Amendment.

H.
Fort Bend County

The
NAACP and MALC contend that an additional minority coalition
district was required in Fort Bend County. The NAACP
Plaintiffs argue that this was an area experiencing
substantial population growth among a diverse group of
voters, mostly minority. Docket no. 1280 at 38 (citing
TrJ1411 (Korbel)). They assert that, “[i]nstead of
drawing compact districts that would recognize the naturally
occurring minority district in Fort Bend—that is, the
150, 000 more minority voters than Anglo added over the
decade—the enacted plan drew HD 26 as an incredibly
non-compact district, intended to be one that could be
maintained as an Anglo district over the decade.”
Docket no. 1280 at 38 (citing TrJ1412-14 (Korbel) and TrJ1607
(Interiano)). MALC asserts that minority population
contributed 80% of the growth for Fort Bend, Wharton, and
Jackson Counties, and new HD85 was placed there to account
for growth, but it is not a minority opportunity district.
Docket no. 1275 FF90, 91 (citing Tr1412 (Korbel)). MALC
further contends that a “heavy concentration of
minority Texans in Fort Bend County is divided into 4
districts, which has the effect [of] diminishing the
electoral opportunities of minorities.” Docket no. 1275
FF92 (citing Tr1416-17 (Korbel)).

The
NAACP offers Plan H202, with HD26 as a proposed tri-ethnic
coalition district that would operate as an Asian-American
opportunity district. Docket no. 406 at 33. The NAACP argues
that African-American, Latino, and Asian-American voters in
the larger Houston area are politically cohesive, that this
district had become viable for minority voters in the
benchmark, [47] and that the voters in this area are
similar to those who act in a tri-ethnic coalition to elect
Vo in HD149, just across the line in Harris County. Docket
no. 625 at 7-8; docket no. 1280 at 38 (citing TrJ1422
(Korbel)).

Proposed
HD26 in Plan H202 would be 12.9% HCVAP, 14.5% Black Alone
CVAP, 23.8% Asian CVAP (for a combined minority CVAP of
51.2%), and 47.7% Anglo CVAP using 2005-2009 ACS data. Joint
Ex. J-25. The NAACP tenders Fairfax's opinion that the
district had become 57% minority CVAP by 2014 and that it
complies with traditional redistricting criteria including
compactness, contiguity, and respecting political
subdivisions. Tr841-42, TrJ902. Rep. Senfronia Thompson
testified about the coalition here and concluded HD26 would
elect an Asian American and the candidate of choice of
minority voters. TrJ1245-46. The NAACP Plaintiffs also assert
that the evidence applicable to Harris County is
“equally applicable to the creation of a new minority
State House District in this area” because voting in
the “larger Houston metro area is racially polarized,
and the area has historically demonstrated high levels of
political cohesion amongst minority voters.” Docket no.
406 at 33.

Visually,
HD26 is relatively compact looking, and where its shape is
somewhat odd it appears to follow a river. Existing HD27 also
appears visually compact and is virtually the same
configuration as in Plan H283. However, the districts do
split the cities of Sugar Land, Missouri City, and Arcola.
Further, even when a district is visually or geographically
compact, Plaintiffs must still proffer evidence that the
minority communities within the proposed district are
compact, taking into account traditional redistricting
principles. See Gonzales v. Harris Cty., Tex., 601
F. App'x 255, *257 (5th Cir. Feb. 9, 2015) (affirming
district court's conclusion that although plaintiffs
presented a “geographically compact hypothetical
district” that satisfied the numerosity requirement,
plaintiffs nevertheless failed to satisfy the compactness
precondition because their plans did not respect traditional
districting principles). Other than compactness scores,
Plaintiffs have not proffered any specific evidence
concerning the compactness of the minority community in light
of traditional districting principles such as respecting
cities.

Further,
even if the NAACP Plaintiffs satisfied the first
Gingles precondition, they did not proffer
sufficient evidence supporting the second and third
Gingles factors. The NAACP Plaintiffs offered only
lay testimony concerning minority cohesion in Fort Bend
County. While lay testimony is relevant, statistical data is
essential when asserting cohesion among three different
minority groups. The Court will not infer cohesion in Fort
Bend County based on cohesion in nearby HD149 in Harris
County.[48]

MALC
offers Plan H329 that would create coalition districts HD26
and HD27. MALC-128. MALC also offers demonstration Plan H366
with “plug-in districts” for Fort Bend County.
MALC introduced the expert opinion of Dr. Brischetto
concerning racially polarized voting, though he only examined
2012 elections. The Court finds these plans should be
addressed in the 2013 plan case, but notes that MALC must
offer evidence demonstrating that the minority communities
contained within these proposed districts are compact, taking
into account traditional districting principles.

Several
Plaintiffs point to Fort Bend County as evidence of
intentional vote dilution. The Perez and NAACP Plaintiffs
contend that mapdrawers racially gerrymandered by splitting
the minority community among HDs 26, 28, and 85. Docket no.
1303 at 5 (citing Martin report at 12). MALC notes that there
are “several” precinct splits “between HD26
and other districts in Fort Bend County” and
“[a]ll of the evidence points to the fact that the
State used race-based mapping splitting precincts along
racial lines to lessen minority voting strength.”
Docket no. 1185 at 8. Plaintiffs note that Fort Bend County
is only 38% Anglo, but Anglos control 71% of the 3.5 seats
anchored there in Plan H283. Joint Expert Ex. E-5 (Martin
report) at 12.

Defendants
argue that Fort Bend County was represented by two
Republicans and one Democrat, and the incumbents signed off
on the districts. Docket no. 1272 at 77; docket no. 1249-1 at
27-29 (citing April 27, 2011 House Journal Supp (D-190) at
¶ 766 wherein Rep. Howard says all three members worked
together and signed off the configuration and do not want to
change it). Defendants further assert that Plaintiffs fail to
prove dilutive effect because it was not possible to create
an additional district in which any single minority group was
a majority of the citizen voting age population, and
Plaintiffs failed to prove the necessary cohesion among
Asian-American, African-American, and Hispanic voters for a
coalition district. Docket no. 1272 at 79.

NAACP
Plaintiffs contend that Defendants' response to claims
that redistricters fragmented the minority community seems to
rest solely on the fact that the map for the area was
approved by all delegates, including one Democrat. Docket no.
1294 at 14. However, they argue that, rather than this being
a member-driven map, Interiano testified that he drew it with
input from the members, and he noted that the two Republican
members wanted their districts to remain Republican through
the decade even though this was a diverse and rapidly growing
area of the state. Id. (citing TrJ1604-05, TrJ1607,
TrJ1571). They argue that Defendants ignore Interiano's
role and stated purposes.

The
Court finds that Plaintiffs have failed to establish their
claim of intentional vote dilution in Fort Bend County
because they have failed to show that mapdrawers acted with a
racial purpose as opposed to a partisan purpose. The district
configuration came from the members, including minority
Democrat member Reynolds. Though there are precinct splits,
Plaintiffs failed to prove that they were racial, and
Defendants offered race-neutral explanations for the bizarre
shape of HD26. Although Interiano testified that he wanted to
keep the Republican districts Republican throughout the
decade, there is no indication that he used race to do so.

I.
Dallas County

In
addition to the one person, one vote claims brought by
certain Plaintiffs in Dallas County, Plaintiffs argue that
mapdrawers used packing and cracking to dilute minority
voting strength, despite the fact that Anglo population
declined and all growth in the County was minority
growth.[49]Docket no. 1280 at 35-36 (“Areas in
the county where the greatest minority population growth
occurred were divided amongst several districts, with heavy
minority populations being carved out and added to already
existing minority districts.”) (citing TrJ1424
(Korbel)). Plaintiffs note that the Anglo population of
Dallas County decreased by over 198, 000, while the Hispanic
population grew by 243, 211, the African-American population
grew by 73, 016, and the Asian population grew by 30, 302 (a
total of approximately 350, 000), yet no new minority
districts were created and “there is some evidence that
a minority opportunity seat in the county was lost.”
Docket no. 1280 at 35 (citing TrJ1423 (Korbel)); docket no.
401 at 9. The Perez Plaintiffs argue that the fact that
Anglos are only 33% of the Dallas County population but will
control 58% of seats required sophisticated line drawing.
Docket no. 401 at 9.

Specifically,
Plaintiffs primarily argue that: (1) in western Dallas
County, existing Latino districts (HD103 and HD104) were
packed (and overpopulated) to waste Latino votes and prevent
additional minority opportunity or influence; (2) benchmark
HD105 and HD106 were becoming minority-majority districts and
on track to provide minority opportunity, but Anglo
population in HD105 was increased so that it could not
perform for minorities and HD106 was eliminated; and (3) in
northeast Dallas County, significant minority concentration
is cracked among five Anglo-dominated districts (107, 112,
102, 113, and 114) to eliminate emerging minority districts
and dilute the minority vote.

Defendants
acknowledge that although it was a “drop-in county,
” there was no delegation map, and Defendants state
that “Downton therefore worked with several Dallas
delegation members to ensure that districts with high SSVR
maintained high SSVR” and “worked to protect
incumbents to the extent Dallas's population decrease
allowed.” Docket no. 457 at 70; docket no. 1249-1 at
18-22. Downton testified that because the Dallas County
delegation was losing two Republican seats and could not
agree on a County proposal, he drew the Dallas County
districts, starting with HD103 and HD104, to ensure their
SSVR levels remained at benchmark. Defendants contend that
“race was a consideration in plan H283 only [to] the
extent necessary to comply with the State's legal
obligations.” Docket no. 457 at 70. Specifically, they
note that changes were made to HD103 and HD104 to respond to
Hanna's concerns, and that the configurations of HD104
and HD105 were attributable to partisan and neutral motives
(pairing Anderson and Harper-Brown, limiting the number of
districts within Grand Prairie) and VRA compliance
(maintaining HD104's SSVR over 50% and maintaining
HD103's SSVR near benchmark). Docket no. 1249-1 at 20.
Defendants contend that no additional Latino and
African-American opportunity districts could be drawn while
maintaining existing opportunity districts.

The
United States asserts that mapdrawers “intentionally
prevented the emergence of a Hispanic opportunity district in
Dallas County.” Docket no. 1279 at 51. The United
States notes that due to population changes, HD106 elected
the Hispanic-preferred candidate in 2006 and 2008, and HD105
came within 20 votes of electing the minority-preferred
candidate in 2008. Id.[50] It asserts that the
districts showed a strong trend toward electing the
Hispanic-preferred candidate, especially in Presidential
election years. Id. at 51-52. The United States
argues that, “[w]ith the additional minority population
growth in the area, state officials realized that the
minority population had a very real possibility of electing
its candidate of choice in 2012, and those officials
impermissibly used race to make HD105 in the 2011 Plan more
Anglo.” Id. at 51.[51] The United States
contends that mapdrawers reversed the demographic trend in
HD105 by increasing Anglo VAP by 5%, which was accomplished
by “stretching the district almost the entire length of
Dallas.” Id. at 52. It notes that this
demographic change had a corresponding effect in the election
analysis, with HD105's election score dropping from 7/9
contests in 2008 to 0/9. Id.; docket no. 1278
FF532.[52]

The
Perez Plaintiffs assert that the “manipulation”
of HD103, HD104, and HD105 was racial and intentionally
frustrated the creation of an additional minority district.
Docket no. 401 at 9-11. The Perez Plaintiffs acknowledge that
the explanation for the shape of HD105 was the need to pair
Anderson and Harper-Brown in a Republican district, but they
contend that this intentionally diluted minority voting
strength in HD105 and forced Hispanic population into HD104
and that fingers were sent into northwest Irving from HD103
to withdraw Latino population. Id. at 9-10 (citing
Martin Tr323). They note that HD103 became the most
overpopulated district in the County and that overpopulation
of these west Dallas districts frustrates the creation of an
additional minority district. Id. at 10-11.

Similarly,
the Perez and the NAACP Plaintiffs contend that making HD105
Anglo required “major manipulation.” Docket no.
1303 at 3. They argue that precinct splits removed heavy
Hispanic blocks into HD103 and HD104 and packed them to
preserve HD105 as Anglo. They thus contend that HD103, 104,
and 105 “manifest racial gerrymandering and minority
vote dilution.” Id.

To the
extent Plaintiffs rely on the fact that all the growth in
Dallas County was minority and that Anglo population
decreased, the Court notes that the CVAP growth was not
nearly as high as the total minority population growth.
Dallas went from 14.11% HCVAP in 2000 to 19.17% under the
2005-2009 ACS data available to the Legislature (the
2008-2012 ACS data indicates 20.39% HCVAP). D-230, D-218,
D-231. Under the 2005-2009 ACS data, though Dallas had a
total population of 2, 383, 125, it was estimated that
approximately 423, 000 were not citizens. D-218. Further,
while the total Hispanic population was estimated at
approximately 900, 000, only about 550, 000 of those were
citizens, and only 256, 195 were Hispanic citizens of voting
age. Nevertheless, two out of fourteen districts (about 14%)
remains less than proportional to the HCVAP. Though fairness
would seem to indicate that Hispanics be given more districts
to achieve proportionality because their population growth
prevented the loss of even more districts, mapdrawers were
not required to draw Latino districts simply to achieve
proportionality.

In that
regard, the Court finds that Plaintiffs have failed to prove
intentional vote dilution with regard to their cracking
claims in northeast Dallas County. Specifically, they have
failed to show that mapdrawers acted with an intent other
than maintaining their Republican districts or that they used
race for partisan advantage. Because of the high correlation
between race and party, splitting Democrats, eliminating
Democratic districts, and shoring up districts for Republican
incumbents necessarily affects minorities, but that alone is
not intentional vote dilution based on race.

The
Court does find, however, that Plaintiffs have proven an
improper use of race in western Dallas County to dilute
Latino voting strength. The configuration of HD103, HD104,
and HD105 is undisputably based in large part on race.
Downton admitted to using racial shading at the block level
to remove Hispanics from HD105 and place them into HD103 and
HD104. Downton denies that any use of race was racially
discriminatory, however, arguing that the shape of HD105 is
governed by the need to pair the residences of Republican
incumbents Harper-Brown and Anderson within HD105 and make
the district more Republican to ensure that one of them could
get re-elected. He further contends that HD103 was drawn in
part with Rep. Anchia and that race was used to ensure that
its SSVR remained at benchmark levels to avoid retrogression.
Although he did not confer with Rep. Alonzo about HD104, he
asserts that it was drawn to ensure that its SSVR was above
50%. While these explanations have some superficial truth,
the Court finds that the configuration uses race in part in a
racially discriminatory manner to intentionally dilute
minority voting strength to protect a Republican incumbent in
HD105 by intentionally making the district more Anglo.

Mapdrawers
and redistricting leadership were hostile to the creation of
a new Latino district in Dallas County because they felt it
would be a Democrat district and result in the further loss
of a Republican seat there beyond the two already required by
the lack of growth in Dallas County overall. With regard to
Dallas County, David Hanna expressly stated that they would
already be losing two Republican seats but it may get
“worse” because they might have to draw a third
Latino district, which would mean the loss of a third
Republican seat. D-192. Rather than exploring whether any
additional minority districts could be drawn or maintained to
recognize the population growth, they eliminated districts
that were on track to perform for minority voters.

Faced
with existing districts 103 and 104 that mapdrawers felt had
to be maintained and two Republican districts that had become
majority-minority in terms of VAP and were becoming less
reliable for Republicans, mapdrawers decided to eliminate
HD106, the district that had actually become
majority-minority CVAP (using 2008-2012 ACS data, though
still Anglo-CVAP majority using 2005-2009 ACS data available
to the Legislature) and had elected the minority-preferred
candidate in two of five elections. Consistent with their
incumbency-protection plan, they paired the Republican
incumbents of HD105 and HD106 in a shored-up district. While
this could be acceptable partisan gerrymandering (at least
under current Supreme Court law), their use of race in doing
so renders it impermissible.

Downton
shored up HD105 by making it more Anglo (and thus more
Republican)—he admitted to splitting precincts to put
the Hispanic population into HD104 and HD103 and the Anglo
population in HD105. Though he claimed this use of race was
only to preserve the SSVR of those districts, the Court finds
that this was yet another example of mapdrawers using
superficial compliance with the VRA to dilute minority voting
strength rather than enhancing it.

Although
Hanna had suggested giving thought to raising the SSVR of
HD104 above 50%, he also clearly stated that it could be
argued that HD104 “will likely perform at 45.6 SSVR
since this is similar to the performing level it was drawn at
¶ 2001.” D-122. Downton relied on the 50% SSVR
threshold in bad faith to waste Latino votes in HD104 because
there is no indication that HD104 needed to be at 50% SSVR to
continue performing. Further, although HD103 was maintained
at benchmark SSVR, there is no indication that mapdrawers
thought this was actually necessary for VRA compliance.
Downton admitted that he did not think HD103 was an
opportunity district (based on his 50% SSVR requirement), and
testified that they maintained the SSVR only to “try to
stave off any possible legal challenge.” Downton
8-31-11 depo. (Joint Ex. J-62) at 97. Jeff Archer had stated
that HD103 was not a Latino opportunity district,
see D-134, and there is no indication that any
election analysis was done indicating that its SSVR number
needed to be maintained to comply with the VRA or to keep the
district performing. Thus, Downton's testimony is not
credible.

The
Court finds that Downton did not believe that raising the
SSVR of HD103 was necessary but he saw it as an opportunity
to make HD105 more Anglo and safer for the Republican by
placing that Latino population into HD103. Thus, although the
use of race was claimed to comply with the VRA, the Court
finds that the true motive was to dilute Latino voting
strength in west Dallas County by unnecessarily placing
Latinos in HD103 and HD104 while simultaneously making HD105
more Anglo to protect the Anglo Republican incumbent who
would emerge from the Republican primary.

The
Court finds that the § 2 results claims are best
addressed in the 2013 plan case. However, the Court finds
that mapdrawers improperly used race with an intent to dilute
Latino voting strength by wasting Latino votes in HD103 and
HD104 and creating a more Anglo HD105 to protect the Anglo
Republican incumbent in the general election. This
intentional vote dilution in Dallas County violates § 2
and the Fourteenth Amendment.

J.
Tarrant County

The
Perez and NAACP Plaintiffs cite Tarrant County as an example
of intentional vote dilution through intentional minority
fragmentation. Docket no. 1263 at 5; docket no. 1303 at 3.
The Perez Plaintiffs argue that Plan H283 does not recognize
the substantial minority growth in Tarrant County, freezing
the number of minority districts at three. Docket no. 401 at
14. They assert “that Districts 90, 93, 95 and 96
reflect racial gerrymander and consequent dilution.”
Docket no. 1303 at 3. Citing Martin's report and
Korbel's report, they contend that Plan H283 minimized
minority seats by packing minorities into HD90 and HD95
through bizarre configurations to dilute HD96 (preserving the
Republican incumbent) and by creating HD93 as an elongated
spike that splintered the minority community. Docket no. 1303
at 3; docket no. 401 at 14.

The
configurations of HD93, HD90, and HD95 are indeed bizarre,
and Plaintiffs contend their bizarre shape can only be
explained by racial gerrymandering. The evidence indicates
that the initial County configuration in Plan H113 was a
delegation-proposed map, although the two minority-district
representatives Veasey and Burnam asserted that they approved
of only their own districts. Although Martin opined that HD90
and HD95 are packed, there is no indication that they were
packed at this point. Their Blackḫ⥪碜 total population
and Bᵐ numbers remained relatively close to and slightly
below benchmark, despite the fact that substantial population
had to be added to the districts.

Because
Hanna raised concerns about the SSVR in HD90 dropping from
the benchmark (from 45% to 40% total SSVR) and MALDEF had
asserted that its SSVR could be raised over 50%, and because
they believed they could “offset” the loss of
HD33, Downton and redistricting leadership decided to raise
the SSVR of HD90 above benchmark levels to 50.1%
(non-suspense), without consulting the representatives of
those districts. There is no indication that HD90's SSVR
needed to be increased to that level to remain a performing
ability-to-elect district.

There
is undisputed evidence that mapdrawers manipulated the
population based on race, removing some areas and swapping
out population to increase the SSVR of HD90 from 40/41.9% in
Plan H113 to 47.9/50.1%. There is little indication that they
cared about traditional redistricting factors or maintaining
communities of interest; they were only concerned with
raising the SSVR to 50.1%. The district became the most
underpopulated district in the plan. The African-American
community of Como was removed from HD90 and placed into a
Republican district represented by Anglo Rep. Geren. Other
population was swapped between HD90 and HD95, and between
HD90 and HD93. Overall, substantial Anglo population was
removed (approximately 12, 000 total population and 11, 000
VAP), while Blackḫ⥪碜 total population and Bᵐ was
increased.

While
at first blush, this appears to be an extreme instance of
packing in HD90, the changes cannot be evaluated in
isolation. As noted, the African-American community of Como
was removed and placed into an Anglo district; this is not
packing. Much population was swapped between HD90 and HD95,
another minority district. In HD95, substantial Anglo
population was added, while substantial minority population
was removed, lowering the Blackḫ⥪碜 total population
percentage as well as Bᵐ. Considering the population
changes in HD90 and HD95 together, total population decreased
by 4, 100 Anglo and 4, 200 Blackḫ⥪碜, and voting age
population decreased by about 3, 600 Anglo and 3, 300 Bᵐ.
Thus, claims that HD90 and HD95 were packed are not supported
by the evidence.

However,
increasing the SSVR of HD90 was merely superficial compliance
with the VRA, invoked in bad faith to actually undermine
Latino voting strength. As discussed, Defendants ignored DOJ
guidance that ability to elect was not measured simply by a
demographic criterion and claimed that they could
“offset” the loss of existing Latino opportunity
and ability district HD33 by increasing the SSVR of an
existing ability district above 50%, even though they knew
this did not create a new ability district. Further, although
they did not use the 50% SSVR pretext to pack HD90 and HD95,
they did use it to shore up HD93 as an Anglo district.
Between Plan H113 and Plan H283, approximately 1, 460
Blackḫ⥪碜 total population and 830 Bᵐ were removed
from HD93 and approximately 435 Anglo total population and
413 Anglo VAP were moved into HD93, increasing the Anglo CVAP
from 65.7% to 66.5%. The Court finds that mapdrawers acted
with racially discriminatory intent to dilute Latino voting
strength in Tarrant County.

K.
McLennan County

MALC,
the NAACP Plaintiffs, and the Perez Plaintiffs assert that
there was intentional vote dilution in McLennan
County.[53] Docket no. 1263 at 4; docket no. 1280 at
34-35. They note that benchmark HD57 was created in the
Graves v. Barnes litigation, 378 F.Supp. 640 (W.D.
Tex. 1974), and the minority community remained intact in
that district for almost 40 years, electing the minority
candidate of choice, until 2010. Docket no. 1263 at 4 (citing
TrJ1442-43 (Korbel)); docket no. 1280 at 34. Benchmark HD57
had become majority-minority in terms of total population,
though it remained majority-Anglo CVAP. Perez Plaintiffs and
the NAACP Plaintiffs argue that majority-minority HD57 was
radically altered and converted to an Anglo-majority
district. Docket no. 1303 at 5.

County
Commissioner Lester Leon Gibson testified that the minority
community had elected their candidate of choice in HD57 from
1998 until the 2010 election, when Anglo Republican Marva
Beck won the district. TrJ1828-29 (Gibson). Plaintiffs
contend that, to protect that incumbent, mapdrawers removed
largely minority areas of Waco from HD57 and replaced them
with more Anglo areas (creating a district that was 55.2%
Anglo in terms of total population), splitting minority
communities of interest and diluting minority voting
strength.[54] Korbel testified that, instead of
preserving the majority-minority character of HD57, Plan H283
removed 23, 000 people, 70% of whom were minority, and
imported 20, 000 persons, who were more than 80% Anglo,
cracking minority voting strength. TrJ1444 (Korbel); see
alsodocket no. 1263 at 4. The Legislature changed the
district number to HD12 and took out minority precincts in
McLennan and Brazos Counties and added Limestone County.
TrJ1443-44 (Korbel); TrJ1841 (Gibson). The Perez Plaintiffs
contend that the reconfiguration intentionally cracked and
fragmented minority voters to dilute their voting strength.
Docket no. 1263 at 4. Korbel testified that the
majority-minority character of the district could have been
maintained, thus preserving minority opportunity to elect.
TrJ1445 (Korbel); see also docket no. 1280 (NAACP
Brief) at 35.

Defendants
contend that Plaintiffs have failed to prove that the
districts were drawn with the purpose of diluting any
group's voting strength, and that Commissioner Gibson was
not familiar with the 2011 House plan and had not looked at
any figures showing whether there was vote dilution. Docket
no. 1272 at 93.

Although
McLennan County fits the pattern of diluting minority voting
strength in districts with significant minority population
that had elected a Republican who was not the minority
candidate of choice in 2010, Plaintiffs have failed to
provide sufficient evidence of racial means or motive to
establish an intentional vote dilution claim. It is
insufficient to show effects, without evidence demonstrating
intent. Coupled with the lack of statistical evidence of
racially polarized voting in this County, the lack of
evidence of intent leads the Court to conclude that
Plaintiffs have failed to prove intentional vote dilution.

L.
Bell County

MALC
and the NAACP Plaintiffs contend that § 2 required the
creation of a minority coalition district in Bell County.
MALC, NAACP, and Perez Plaintiffs further contend that Bell
County is evidence of intentional vote dilution. MALC's
Third Amended Complaint alleges that in Bell County,
African-American and Latino population growth exceeded 51.64%
and the minority community is geographically compact and
politically cohesive in the City of Killeen. Docket no. 897
¶ 54. MALC contends that Plan H283 “unnecessarily
fragments the minority community of Killeen to minimize its
political impact on Texas House elections.”
Id. The Perez Plaintiffs also allege intentional
discrimination with regard to HD54. Docket no. 960 (Sixth Am.
Compl.) ¶ 28.[55]

The
NAACP Plaintiffs say that the City of Killeen is
exceptionally diverse in part because of its unique
relationship with Ft. Hood and that, because of its unique
interests, it benefits from being kept whole. Docket no. 1280
at 31-32 (citing TrJ1706-7 (Jones)). It was kept nearly
entirely whole in the benchmark HD54, with only about 200
individuals from Killeen excluded. TrJ1403 (Korbel). The
NAACP Plaintiffs note that the City of Killeen experienced
tremendous population growth over the decade, and HD54 was
overpopulated. Docket no. 1280 at 32 (citing TrJ1706 (Jones);
Tr TrJ1401-2 (Korbel)). MALC, Perez, and the NAACP Plaintiffs
further note that, once Burnet County was removed, HD54 was
short 13, 000 voters, but instead of adding voters to the
existing core of HD54, which already contained almost the
entire City of Killeen, mapdrawers removed approximately 33,
000 voters from Killeen, 2/3 of whom were minority, and added
in Anglo voters. Docket no. 1280 at 32 (citing Tr1402-5
(Korbel)); docket no. 1263 at 5. In Plan H283, both HD54 and
HD55 are majority-Anglo CVAP and the City of Killeen is split
between the two districts.

NAACP
Plaintiffs contend that Plan H202 “created a new
African American [coalition] opportunity district in Bell
County.” Docket no. 406 at 33. In 2011, HD54 was
proposed as a multi- ethnic minority coalition of 28.7% Black
Alone CVAP, 17.7% HCVAP, 3.2% Asian CVAP, and .8% Indian
American (46.4% Anglo CVAP) using 2005-2009 ACS data. Joint
Map Ex. J-25. Fairfax testified that it would be a majority
Bᰥ district (30.99% BCVAP and 22.3% HCVAP for combined
Bᰥ of 53.29%) in 2014. TrJ912. NAACP Plaintiffs note
that Fairfax found it to be a majority-minority district and
that it was compact, contiguous, respected political
subdivisions, complied with traditional redistricting
criteria, and could be adopted by the Legislature. Tr842-43.

Although
the NAACP Plaintiffs offered no expert evidence of racially
polarized voting specific to Bell County in 2011, they
contended that “the statewide analyses performed by Dr.
Kousser, Dr. Ansolabahere, and Dr. Lichtman finding racially
polarized voting in Texas are all applicable to Bell County,
” and they also relied on the lay testimony of Phyllis
Jones, a long-time resident of Bell County. Docket no. 406 at
34; docket no. 408 at 8. They further noted that districts
between 35-45% BVAP and total minority population around 70%
are generally effective minority coalition districts, citing
congressional districts 9, 18, and 30 as examples. Docket no.
406 at 35. In addition, Defendants stipulated during trial
that racially polarized voting exists throughout Texas, other
than in Nueces and Kleberg Counties.

Plaintiffs
fail to prove that HD54 as drawn in Plan H202 was required by
§ 2 in 2011. According to the ACS data available to the
Legislature, it was not majority-minority-CVAP without
combining three or four minority groups, and there is no
indication that Plaintiffs had provided the necessary
evidence concerning multi-ethnic cohesion. Thus, the
Legislature's intentional failure to create the district
was not, standing alone, intentional vote
dilution.[56]

However,
the evidence does indicate that mapdrawers (specifically
Aycock) intentionally racially gerrymandered the districts to
dilute the minority vote by moving minority population out of
HD54 and moving Anglo population in, thus cracking and
diluting the minority vote to ensure Anglo control over both
districts. Aycock was not the minority candidate of choice
and often voted against NAACP positions. TrJ1703-5 (Jones);
TrJ1751 (Aycock). The Perez Plaintiffs note that Killeen is
heavily minority, “there has emerged an effective
minority political coalition around municipal policies,
” and that a “minority candidate [Brown] recently
ran a reasonably strong campaign against the incumbent,
” which Plan H283 addressed “by cynically
splitting the Killeen minority community.” Docket no.
1263 at 4-5; TrJ1705 (Jones); see also TrJ1696-97
(Jones) (noting that minority voters had elected their
candidate of choice to city council).

Defendants
assert that HD54 “was drawn for race-neutral reasons
and without a racially discriminatory purpose.” Docket
no. 1276 CL54. They contend that the Bell County
configuration was created by the two members of the
delegation (Jimmie Don Aycock (HD54) and Ralph Sheffield
(HD55)), that it reflects the “give and take”
between them, and that the demographic figures in H100 and
H283 are largely the same. Docket no. 1249-1 at 32-34; docket
no. 1272 at 49-51; docket no. 1276 FF145. Defendants note
that most of Killeen is in HD54 and that Killeen had been
divided in prior plans (and is divided in NAACP
Plaintiffs' proposed Plan H202), that minority CVAP
increased in HD54 and Anglo CVAP decreased from 59.4% to
56.1%, and that Aycock testified that he felt that Lampasas
County had more in common with Killeen than Temple and Belton
(TrJ173-34). Defendants argue that, as drawn in Plan H283,
“the Bell County House districts reflect the goals
identified by Representative Aycock and they do not diminish
minority voting strength.” Docket no. 1272 at 51.

After
the loss of Burnet County due to the population increase,
Reps. Aycock and Sheffield were limited in their district
configurations. Rep. Aycock drew the lines and “knew
where the voters were and where [he] wanted to draw those
lines.” TrJ1755 (Aycock). Aycock wanted more
“Republican” areas and he knew that a minority
coalition district would not likely have enough Republicans
to re-elect him. TrJ1741-44, TrJ1769 (Aycock). Aycock drew
the district to split the City of Killeen and the minority
community. Although plans were introduced during the session
(such as Plan H202 and Plan H232) that would have kept the
City of Killeen more whole in one district, these plans were
rejected, and Aycock testified it was because Lampasas County
was more aligned with western Bell County than with
Temple/Belton, so it was beneficial for them to remain in a
district with Killeen.

As
noted in the fact findings, the Court does not find this
testimony credible. Aycock also objected to plan H201 because
it had a “land bridge” joining Killeen with
Temple and Belton, though he admitted that Plan H283 includes
land bridges in other areas and he voted for it. This again
indicates that Aycock's objections to minority-proposed
plans were pretextual. Further, the fact that Anglo CVAP
decreased in HD54 was due to the fact that minority
population growth accounted for more than 70% of the growth
in Bell and Lampasas Counties and the exclusion of more Anglo
Burnet County. The Court finds that the decision to split
Killeen and the minority community within it was to ensure
that HD54 and HD55 remained Anglo-majority, and would
re-elect Republican incumbents. Minority communities were
removed and Anglo areas were moved in, which made it more
difficult for minority voters in HD54 to elect their
candidate of choice.

Plaintiffs
presented some lay testimony of minority cohesion through
Phyllis Jones of Killeen.[57] Dr. Brischetto found racially
polarized voting in the 2012 elections in Bell County. Thus,
splitting the minority community was an effective way to
dilute the minority vote and ensure that the bloc-voting
Anglo majority would defeat minority-preferred candidates.
The Court thus finds evidence of intentional vote dilution in
Bell County in violation of § 2 of the VRA and the
Fourteenth Amendment.

M.
Midland/Ector Counties

MALC
contends that a new Latino opportunity district was required
in Midland and Ector Counties. Defendants assert that, under
the 2010 census, both Midland and Ector Counties were
entitled to the same number of districts (0.8) as in 2000, so
the configuration in this area is largely unchanged. Docket
no. 1249-1 at 37. Following the County Line Rule, the two
districts in Plan H283 are composed of whole
counties—HD81 contains Andrews, Winkler, Ector, and
Ward Counties, while HD82 contains Dawson, Martin, Midland,
Crane, and Upton Counties. No party has asserted that a
Latino opportunity district could be drawn in this area
utilizing whole counties and respecting the County Line Rule.
MALC proposes a new Latino opportunity district (HD81) in
this area in Plan H205, Plan H295, Plan H329, and Plan H360,
all of which involve County Line Rule violations.

In Plan
H205, proposed HD81 splits Midland and Ector Counties (along
with the cities of Midland and Odessa) and joins them with
six whole counties to the west plus an odd-shaped extension
into Winkler County that splits the cities of Kermit and
Monahans. Excising the Hispanic populations from four cities
and towns spread across three counties does not respect
political subdivisions. These Hispanic populations are not
...

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